In this epoch, it is not seldom to come across an example of backsliding democracy. In a way, this phenomenon defines the gist of our times. However, the kind we witness in the US stands unique with its vibrant intellectual layout. For years behind, the fight for gaining upper hand in the judicial system has not only damaged the judicial impartiality of the Supreme court but also undermined American democracy by spoiling this essential institution. As Keith Rosenn masterfully shows in the Latin American case, the importance of judicial independence in the consolidation and maintenance of democracy is crucial; and when it is jeopardized, democracy can be said to be decaying from within (Rosenn 1987). The US democracy, therefore, can be said to be experiencing this painful decay.
As a matter of fact, this decline goes back to the 1980s, when the Federalist Society, an organization of conservative lawmakers dedicated to transforming the American judiciary system, started to consult the presidents about their supreme court nominations. This was called conservative backlash and it was a sort of answer that came after a powerful wave of democratic empowerment of the underprivileged in the 1960s and 1970s. Important verdicts such Miranda Tinker v. Des Moines (1968), Roe v. Wade (1973) led conservative circles to worry that they started to “lose” the country. This was one of the origins of the conservative legal fight as it was usually called. When the 2000s arrived, the Supreme Court was already accommodating controversial figures known as ardent defenders of conservative zeal, namely Clearance Thomas, Samuel Alito, and Antonin Scalia. To understand the dimensions of controversy around the nomination of these justices, it is enough to look at the voting results in the Senate. For instance, whereas David Souter received his tenure with a landslide of 90 votes, Clearance Thomas could hardly get approval from the senate, by the margin of only two votes just a year after the nomination of Souter.
During Trump’s presidency, moreover, the conservative legal movement wholly captured executive mechanism and managed to get nominated three very controversial justices whose competency and impartiality have been under strong suspicions. Berrett, Gorsuch, and Kavanaugh marginalized the Supreme Court even further. Before 2020, the Court’s splitting along two partisan lines already became a visible phenomenon, yet chief justice Roberts used to play a balancing role between the two polars in a way as to prevent the court from ending up a totally malfunctioning unit. There was no period in US history where the Supreme Court divided 5 v.4 in many cases as much as it used to do in these times. Nonetheless, the most perturbing sign that the Court is about to turn into a menace to American democracy itself came when the Court overturned the historic Roe v. Wade decision in June 2022 which guaranteed abortion rights for American women for five decades.
What is even more disturbing about the Court’s shift is, as it is referred to at the beginning of the article, its intellectual layout which the conservative legal movement headed by the Federalist Society has meticulously built in four decades. In this sense, it is not like any other backsliding that appealed to the most basic instincts with ephemeral words incapable of leaving durable marks. What conservative circles call “the originalist interpretation of American law” allows justices to disregard the necessities and demands of contemporary American society for their rigid ideological orientations. According to their originalist interpretation of the amendments, to put it simply, lawmakers are expected to take only the words of the amendments into account when they make their judgments without considering the material circumstances of the day. Rather than subjective material conditions that always change bringing a new society, it is argued that they need to embrace this textualist line. Of course, embracing this legal interpretation generates absurd presumptions such as denying abortion right just because it is not directly referred in the amendments. The Federalist Society, since the very day it was founded, has organized numerous conferences and forums to develop this “new” model of interpretation, thus to a certain extent they managed to establish a coherent model in itself. In other words, four decades of judicial backsliding have been accompanied by an effort to redefine how actors imagine the legal framework making the United States. For a country that was conceived chiefly on the basis of judicial independence and vigor, this way represents not only a judicial backsliding but also democratic erosion.
Keith S. Rosenn, The Protection of Judicial Independence in Latin America, 19 U. MIA Inter-Am. L. Rev. 1 (1987)