Why Judges Can't Save Democracy

17 Pages Posted: 26 Jul 2022 Last revised: 17 Oct 2022

See all articles by Robert L. Tsai

Robert L. Tsai

Boston University - School of Law; Princeton University - Center for Human Values

Date Written: October 16, 2022


This is a contribution to a symposium on David M. Driesen's book, "The Specter of Dictatorship" (Stanford Press 2021), held at Syracuse University College of Law in the Fall of 2021. In his book, Driesen encourages judges to take an active role in preserving American democracy, not only by checking presidents with despotic tendencies, but also by restoring the Constitution as originally designed. I make several points related to why we should be modest about predicting the capacity of judges to constrain a president who is bent on breaking legal limits and busting valuable political norms. First, whether constitutional adaptations to the expansion of presidential power are illegitimate or worthy of acceptance remains highly contested given our sparsely written constitution and aging political order. For instance, the need to respond to new threats and the rise of social movements that vocally support presidents now complicate and even limit what judges can do. Second, some judges may in fact be "movement jurists" whose approaches are closely aligned with certain sectors of society. Third, while Driesen cites the example of Turkey and Hungary as examples where judicial intervention in democratic backsliding can do some good, there are reasons to be cautious about drawing those lessons when it comes to America's own situation. Fourth, in the U.S., some of the factors creating gridlock and political dysfunction are likely to also infect the judiciary. Fifth, the actual history of judicial involvement to protect democracy in the U.S. is not a happy one. Without tracing the entire sweep of that history, it's worth noting that it's just as likely that vigorous judicial review will block and demoralize pro-democracy forces or anti-corruption reformers. We might have to completely reimagine how judges are selected in this country before confidently putting our faith in judges to save democracy.

Keywords: constitutional law, democracy, judicial review, comparative law, political theory, democratic decline

Suggested Citation

Tsai, Robert L., Why Judges Can't Save Democracy (October 16, 2022). Syracuse Law Review, Vol. 72, No. 1, 2022, Boston Univ. School of Law Research Paper No. 4164751, Available at SSRN: https://ssrn.com/abstract=4164751 or http://dx.doi.org/10.2139/ssrn.4164751

Robert L. Tsai (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

HOME PAGE: http://bit.ly/37YuJZ9

Princeton University - Center for Human Values ( email )

Princeton, NJ 08544
United States

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