The Supreme Court’s Legitimacy Crisis and Constitutional Democracy’s Future

Johnsen, Orr, Gumbel, Kitwana, Becker, "Democracy Unchained: How to Rebuild Government for the People" (2020)

Indiana Legal Studies Research Paper No. 408 (2020)

23 Pages Posted: 6 Mar 2020

See all articles by Dawn E. Johnsen

Dawn E. Johnsen

Indiana University Maurer School of Law

Date Written: 2020

Abstract

President, Donald Trump has routinely violated longstanding norms that govern and undergird the United States’ constitutional democracy. His disregard for rule of law and other foundational norms—in some instances in violation of the law—has inflicted damage and exposed vulnerabilities throughout government and in the vital supporting institutions of civil society. Special Counsel Robert Mueller documented one high-profile set of violations. His investigation into Russian interference in the 2016 U.S. election revealed the difficulty of constraining a president willing to flout norms and the law, particularly with prosecution of a sitting President off the table, a divided Congress disinclined to act, and an excessively deferential Supreme Court.

In our democratic system, change ultimately depends upon the outcomes of elections. The Twenty-second Amendment guarantees that, notwithstanding any authoritarian tendencies, Trump will leave office no later than January 2025. We cannot yet know whether, as constitutional scholar Jack Balkin predicts, Trump’s presidency represents an end-of-era “disjunctive” presidency (using political scientist Stephen Skowronek’s taxonomy) and the final collapse of Reagan-era conservatism. Balkin holds out promise that “when we get through it—about five to ten years from now—the present will seem like a distant, unhappy nightmare, or an illness from which one has recovered.” Others warn against taking such solace, pointing to signs that Trump instead will prove to be a “reconstructive” president who transforms the terms of debate and expectations for future presidents. Time and future elections will tell.

In one vital respect, however, recovery will require more than winning the next election or two. Long after Trump leaves office, those he appoints to the Supreme Court and lower federal courts will continue to serve. The post-Trump courts may be profoundly out of step with the nation for decades to come.

Keywords: courts, justices, Supreme Court, judiciary, democracy, judicial review, legitimacy, Trump, judicial appointments, partisan, judicial independence, court packing, judicial reform

JEL Classification: K1, K4, K42

Suggested Citation

Johnsen, Dawn Elizabeth, The Supreme Court’s Legitimacy Crisis and Constitutional Democracy’s Future (2020). Johnsen, Orr, Gumbel, Kitwana, Becker, "Democracy Unchained: How to Rebuild Government for the People" (2020) , Indiana Legal Studies Research Paper No. 408 (2020), Available at SSRN: https://ssrn.com/abstract=3547693 or http://dx.doi.org/10.2139/ssrn.3547693

Dawn Elizabeth Johnsen (Contact Author)

Indiana University Maurer School of Law ( email )

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