Democracy's Fundamentals: Efficacy, Equality, And The Supreme Court

Abstract

Democracy is an ideal increasingly under threat in the United States and around the world. Discussions of these threats—both in popular media and in academic literature—often center on the role of a single, strong executive in precipitating the type of democratic erosion that characterizes democratic decline in the twenty-first century. But we also know that democratic erosion does not happen overnight and it does not happen exclusively because of the appearance of a single would-be authoritarian. Instead, there are a host of other conditions that lay the groundwork for the rise of authoritarianism and the erosion of democratic norms, each of which merits sustained attention

This essay turns its attention specifically to the role of courts in democratic erosion. When assessing courts in a democratic regime, we must begin by asking substantial questions about what it means for any democratic nation to allocate such important functions to an often unelected branch of government. Courts must fit within a democracy, not democracies within a judicial system. Considering how that is best accomplished forces us to ask challenging questions about the nature of democracy itself.

This essay asks those questions in reference both to courts as institutions around the world and to the United States Supreme Court. The essay begins with a brief overview of the scholarly literature regarding the role of courts in regimes that are in the process of democratic erosion; that is, nations that are moving away from democracy and toward autocracy. After a brief consideration of the role of courts in consolidated regimes—of both the authoritarian and democratic varieties—the essay trains its lens on the role played by the Supreme Court in facilitating the process of democratic erosion underway in the United States. The essay examines the actions of the Supreme Court only after pausing to establish what we might mean when we talk about a “democracy.” That reflection points in the direction of two fundamental predicates of democratic rule: efficacy and equality. The remainder of the essay then examines the Supreme Court’s decisions in those categories and determines that the Court is consistently undermining both.

Keywords: democracy, supreme court, administrative law, unitary executive theory, equality, efficacy, democratic erosion, courts