The Supreme Court and the Dynamics of Democratic Backsliding

Abstract

This article explores the role of the U.S. Supreme Court in contemporary democratic backsliding. I identify three dynamics that have placed American democracy under strain: (1) the incomplete democratization of national institutions created in 1787; (2) a half century of rising inequalities in wealth, market power, and political influence; and (3) a resurgence of intolerant, authoritarian, white-ethnic identity politics associated with the Republican Party. I argue that the Court has proved itself to be capable of creating linkages between these distinct institutional, economic, and sociocultural domains. In doing so, the Court has enabled the transformation of economic or sociocultural power into durable political power and the transformation of political power into the entrenchment of a “permanent minority” immured from democratic defeat. I describe specific doctrinal mechanisms by which this arbitrage role is performed, showing how the Court can be a vector of democratic backsliding.

The U.S. Supreme Court and democratic backsliding

“…Despite these recent holdings, then, the Court retains its ability to obstruct democracy‐ enhancing legislative and executive action whenever it chooses. As Aziz Huq has observed, “the net effect of [the Roberts Court's election law] decisions is a shift in election‐related administrative power from bodies less likely to engage in entrenchment to entities most likely to use such power to dampen responsiveness” (2022: 60). Indeed, as I have argued elsewhere, the prospect of further strong‐form abusive judicial review hangs like a sword of Damocles over ongoing efforts by congressional Democrats to rein in partisan gerrymandering, expand voting rights, and the like (Keck, 2022).…”

“…In other words, some courts are likely to adopt an ambivalent stance toward democracy, engaging in practices of abusive judicial review in some contexts while performing a democratic guardrail role in others. Courts may adopt such an ambivalent stance because the judges hope to whitewash their anti‐democratic actions with pro‐democratic actions appearing to demonstrate their continued commitment to liberal democracy (Huq, 2022: 61). Or they may do so because some judges are genuinely ambivalent, pulled in conflicting directions by their short‐term partisan/ideological goals and their long‐term commitment to liberal democracy.…”

“…26 26 As Jenny Breen (2024) has noted, the Roberts Court has sometimes played a guardrail role in cases involving executive power as well. In particular, in cases involving investigations of President Trump, the Court repeatedly “buttressed the ability of other institutions to check the power of the President by subjecting the person holding the office to the same rules as other citizens.” But Breen also suggests that Trump's own appointees have rendered the Court's commitment to these doctrines less reliable (see also Huq, 2022: 61). …”

“…2321 (2021). See generally Huq (2022: 60) (characterizing Rucho , Shelby County , Brnovich , and related decisions as “limit[ing] the capacity of subsequent electorates to exercise a negative judgment on an incumbent politician, party, or coalition”).…”

Erosion, Backsliding, or Abuse: Three Metaphors for Democratic Decline

“…Conclusively establishing that the decisions undermining voting rights by the Roberts court represent bad faith judicial attacks on democracy is beyond the scope of this essay, but it seems clear that Republican Senate leaders altered established procedures to facilitate their capture of the Supreme Court, that Republican President Trump openly signaled his expectation that the captured court would rule in his favor on election law disputes, that the court has reversed long-standing precedents in the election law context, and that it has sometimes departed from standard judicial procedures in doing so-all red flags noted by Dixon and Landau (2021) in their discussion of examples outside the US context. A growing variety of scholars have sounded this alarm (Klarman 2020;Huq 2022;Keck 2022). Feldman (2021, 130-34) appears to agree, though he treats the Supreme Court's decisions undermining democracy as only one of many sets of decisions that collectively warrant an aggressive Democratic response.…”