The Supreme Court and the Dynamics of Democratic Backsliding

Published date01 January 2022
Date01 January 2022
Subject MatterDemocratic Institutions: Resilience and Vulnerability
50 ANNALS, AAPSS, 699, January 2022
DOI: 10.1177/00027162211061124
The Supreme
Court and the
Dynamics of
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;
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).
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.

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