The U.S. Supreme Court and democratic backsliding

Abstract

This paper assesses the performance of the Supreme Court as democratic guardrail during five prior periods of democratic crisis in the United States. It finds that most such periods witnessed efforts by the governing regime to entrench themselves in power, and that the Court has rarely provided an effective check on such democratic abuses. Rather than serving as a reliable democratic guardrail, the Court has regularly exercised what Dixon and Landau call “weak‐form abusive judicial review”; that is, it has declined to check attacks on democracy emerging from other centers of power. On one occasion, the Court has undermined democracy even more directly via “strong‐form abusive judicial review”; that is, the Court itself attacked key democratic guardrails. This historical record provides a helpful baseline for evaluating the Court's performance during the Trump era, when it has taken actions that both protect and undermine democratic health. Conflicting signs indicate that the Court is playing a more democracy‐protective role than most of its predecessors in some respects, but a more democracy‐undermining role in others. As such, it is too soon to say with confidence whether the contemporary Court will be remembered, on balance, for resolving or exacerbating a system‐threatening constitutional crisis.