The Supreme Court and the Dynamics of Democratic Backsliding

• Published date: 01 January 2022
• Date: 01 January 2022
• DOI: http://doi.org/10.1177/00027162211061124
• Subject Matter: Democratic Institutions: Resilience and Vulnerability

50 ANNALS, AAPSS, 699, January 2022

DOI: 10.1177/00027162211061124

The Supreme

Court and the

Dynamics of

Democratic

Backsliding

By

AZIZ Z. HUQ

1061124ANN THE ANNALS OF THE AMERICAN ACADEMYTHE SUPREME COURT AND DEMOCRATIC BACKSLIDING

research-article2021

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 influ-

ence; 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 mecha-

nisms by which this arbitrage role is performed, showing

how the Court can be a vector of democratic backsliding.

Keywords: democracy; judicial power; Supreme Court;

backsliding

On October 28, 2020, the U.S. Supreme

Court declined to hear a lawsuit disputing

a ruling from the Pennsylvania Supreme Court

to the effect that ballots arriving after 8:00 p.m.

on election day could be tallied (Republican

Party of Pennsylvania v. Boockvar 2020). The

Court split 4-4. Chief Justice John Roberts

likely cast the crucial vote not to proceed to

review the constitutionality of the Pennsylvania

practice. But in a separate statement, Justices

Samuel Alito, Clarence Thomas, and Neil

Gorsuch warned that the case nevertheless

raised constitutional questions that “call out for

review by this Court.” Indeed, these justices

intimated, such review could be decided “under

a shortened schedule” in the days after the

Aziz Z. Huq is the Frank and Bernice J. Greenberg

Professor of Law at the University of Chicago Law

School. His most recent book is The Collapse of

Constitutional Remedies (Oxford University Press 2021).

Correspondence: huq@uchicago.edu

THE SUPREME COURT AND DEMOCRATIC BACKSLIDING 51

election, while ballots were still being counted, in a way that might alter the

announced election result.

Twenty years beforehand, the Supreme Court had taken up a similar postelec-

tion appeal from a different state court, on a different constitutional question,

and had enjoined ballot recounts. The resulting decision, Bush v. Gore (2000),

was controversial, to say the least, for its perceived decisive effect on the 2000

presidential race. Before 2020, however, Bush v. Gore had been cited only once

by the Supreme Court itself. Until then, it seemed a one-off.

As it happened, the margin of electoral victory in Pennsylvania was wide enough

that late-arriving ballots could not have been outcome determining. Over a dissent

by Justice Thomas, the Supreme Court in February 2021 dismissed the challenge

to Pennsylvania’s vote-counting deadline (Republican Party of Pennsylvania v.

Degraffenreid 2021). None of the other sundry legal challenges filed on behalf of

the Trump campaign against the 2020 results made much headway either.

The Court’s decision not to intervene directly in the 2020 election, albeit by the

thinnest of voting margins, might be understood to reflect a chastened understand-

ing of the judicial role in policing democratic choice. Bush v. Gore, on this view,

would be an embarrassing exception to the general norm of judicial noninterven-

tion in elections in the days before or after polling occurs. Were this so, the stand-

ard view in political science about the relationship between the Supreme Court

and American democracy might be tenable. On that account, the Supreme Court’s

power is consonant with democratic norms because it is rarely out of step with a

“law making majority” (Dahl 1957) as a consequence of personnel turnover regu-

lated by the White House and Senate, and thanks to judicial responsiveness of

public opinion (Casillas, Enns, and Wohlfarth 2011; Giles, Blackstone, and Vining

2008). Conversely, the Court has been shown to have only a modest capacity to

influence social policy or public opinion (Mentovich, Huq, and Cerf 2016). In

Gerry Rosenberg’s famously pessimistic articulation, courts’ contribution is often

“officially recognizing,” and not causing, policy change (Rosenberg 2008, 338).

This article presents evidence to the contrary. It suggests that the federal judi-

ciary, and specifically the U.S. Supreme Court in its role as a national policy-

maker, does play an active and consequential role in calibrating the quality of

American democracy. This judicial role does not flow only through anomalous

cases such as Boockvar and Bush v. Gore, and it is often indirect rather than

direct. Evaluation of judicial behavior focused narrowly on the immediate con-

text of an election is thus woefully incomplete, even misleading. Rather, I argue

that courts shape the path of democratic institutions, and the likelihood of per-

sisting democratic competition, by determining when and how economic, organi-

zational, sociocultural, or transient political power can be translated into durable

political power. By facilitating the arbitrage of one form of power into another—

cutting across different domains of social life—the Court has the present effect

of enabling a demographic and ideological minority to disproportionately exer-

cise durable control over subsequent political decisions. To paraphrase Hobbes,

the Supreme Court allocates power in the sense of “the present means to obtain

some future apparent good” (Goldman 1972, 221). The prospect of a permanent

governing minority for the twenty-first century runs on judicially fashioned rails.