After America E2: The Oppressed Majority - How the Constitution Aids Authoritarianism

What if the very institutions designed to protect American democracy are now its greatest threat? In this episode, we scrutinize why Donald Trump remains a formidable candidate nearly four years later, and how key democratic norms and institutions like the rule of law, free and fair elections, and a free press are being systematically eroded. This sets the stage for the 2024 election, framing it as a critical battle between authoritarianism and democracy.

We also unpack the structural weaknesses that plague American democracy today, focusing on the Senate, the Electoral College, and the House of Representatives. These institutions, originally designed to balance power, now disproportionately benefit Republicans, leading to governance and policy outcomes that undermine public trust. Partisan gerrymandering and the Senate's counter-majoritarian design are scrutinized for perpetuating poor governance and eroding faith in our democratic systems. We also discuss the role of bureaucracy, technocracy, and neutral institutions in safeguarding democracy.

Finally, we delve into the fragility of American democratic norms and the judiciary. Discussing the politicization of judicial appointments and challenges to electoral legitimacy, we explore the consequences for democratic stability. The rise of Christian nationalism, deregulation, and threats to climate initiatives signal troubling trends, especially with the prospect of Donald Trump's return to the presidency.

Guests: Dr. Sara Benesh, Stephen Marche, Dr. David Faris, & Dr. Tom Ginsburg

Sources:
Bush v. Gore Clip - Courtesy of the United States Supreme Court
McConnell Senate Speech on Garland Confirmation - Courtesy of C-SPAN
Infados - Kevin MacLeod
Dark Tales: Music by Rahul Bhardwaj from Pixabay

Counterpoint Podcast

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Music:
Majestic Earth - Joystock

Chapters

• 0:36 American Democracy at a Crossroads
• 15:15 Weaknesses in American Democracy Exploited
• 23:15 The Fragility of American Democracy
• 34:26 The Erosion of Democratic Norms
• 41:07 Challenges to American Democracy

Transcript

Shawn: 0:36

On last week's episode of After America, we examined how the Republican Party has evolved and radicalized since the 1960s to help us understand how January 6th could happen. How the sitting president could foment an insurrection against the country and elected officials within the party could support, justify and, in some cases, even advocate for that insurrection against the country and elected officials within the party could support, justify and, in some cases, even advocate for that insurrection. And how, nearly four years later, the Republican electorate would choose that former president as their party's candidate for president again. But January 6th represents not just a culmination of the GOP's radicalization and sharp turn toward political violence as a legitimate means to an end. It also represents how severely American democracy has degraded and the dangers that still dog it.

Shawn: 1:25

This 2024 election has been cast as an existential battle between authoritarianism and democracy, and if that framing is successful, I think that for the average American, this would seem like an easy choice. Democracy should win hands down. So why are President Joe Biden, the champion of democracy, and former President Donald Trump, the architect of the 2021 insurrection, locked in a tight election battle that often seems to give Trump the edge in polls? What does it say about the state of our democracy when a significant portion of the electorate is ready to embrace a leader who openly flouts democratic principles? And how existential is this election really? To answer these questions, we need to delve deeper into the foundation and pillars of American democracy and how they're being eroded. American democracy has long been upheld by key institutions and norms such as the rule of law, free and fair elections, a free press and a robust civil society. These pillars ensure that power is checked and balanced, that leaders are held accountable, that the citizens have the right to participate in the political process and that the majority cannot tyrannize the minority. The threat isn't just that we are experiencing democratic backsliding. The threat is that we don't care. We don't seem to believe in democracy anymore. So in order for us to understand what's at stake if we were to lose our democracy or even parts of it, we need to understand democracy itself and what it seeks to achieve, how American democracy was designed and why, and that's what we're going to do today.

Shawn: 3:01

Welcome to After America. I'm your host, sean C Fettig. Find, follow and like Deep Dive with Sean C Fettig on your favorite podcast platform and on YouTube to keep up with new episodes of After America releasing every Sunday. The clock is ticking. Democracy is at a crossroads and the time to act is now.

Shawn: 3:29

When we think about democratic failure and the rise of authoritarianism, we often think about coups or other exogenous events that suddenly and illegally overthrow an existing democratic regime and replace it with something more autocratic. This happened in Chile in 1973, zimbabwe in 2017, sudan in 2019, and Niger in 2023. There is, however, a slower, more insidious process that can achieve the same result the replacement of a democratic system and regime with a more authoritarian one, and that's through the gradual weakening of democratic norms and institutions and the exploitation of vulnerabilities in the democratic design to destroy it from within. This is known as democratic backsliding or erosion, and this happens through various means. One way is through manipulation of electoral systems, gerrymandering, voter suppression and tinkering with electoral laws that protect one party while weakening another. Hungary, under the leadership of Viktor Orban, has engaged in significant gerrymandering and changes to electoral laws that have favored his ruling party. Another way to erode democratic systems is through degradation of judicial independence. By stacking the courts with loyalists, leaders can ensure legal backing for their actions. This happened in Poland under the Law and Justice Party, and last year, benjamin Netanyahu of Israel tried to push through changes to the judicial system that would have essentially neutered the court's ability to hold accountable his ruling coalition.

Shawn: 5:04

Authoritarian regimes also often curtail freedom of the press and civil society organizations to stifle dissent and control public discourse.

Shawn: 5:13

Turkey, under Recep Tayyip Erdogan, has experienced extensive crackdowns on journalists and activists, and leaders may use states of emergency or executive orders to bypass other branches of government and consolidate power in their own hands.

Shawn: 5:27

Hugo Chavez of Venezuela and Rodrigo Duterte in the Philippines both used emergency powers to allow them to govern with little to no oversight. Democracies around the world are experiencing this type of democratic erosion at an alarming rate. Freedom House, which has been measuring global democracy since 1941, reported that 2023 was the 18th consecutive year in which global freedom declined. Last year, 52 countries experienced democratic backsliding, while only 21 improved. This year, as I mentioned at the top of this episode, the presidential election has been cast as a battle for the future of American democracy, with our freedoms at very real stake if Donald Trump were to win, and so we talk about democratic backsliding in the United States as if it is some dark force that is sweeping around the globe, has the United States in its sights, but as of yet, hasn't taken hold. I'm going to argue that we in the United States are already pretty far down that road, that we have been experiencing democratic backsliding on a number of fronts for about and at least the last 24 years. It began with the presidential election of 2000.

Dr. Ginsburg: 6:37

We'll hear argument now on number 00949, George W Bush and Richard Cheney versus Albert Gore.

Shawn: 6:44

On November 7, 2000, election night began with a close contest between Republican candidate George W Bush and Democratic candidate Al Gore, with the candidates polling neck and neck within the margins of error. And so, as expected, the results in several key states were extremely tight, and the tightest was Florida. Initially, the media called the state for Gore, then retracted it, called it for Bush and finally marked it as too close to call. The final unofficial count in Florida showed Bush leading by a narrow margin, narrow enough that it triggered a state law mandating an automatic machine recount. While this recount was going on, both campaigns engaged in extensive legal battles over the validity and method of counting these ballots, how to count them, which should be included, which should be included, which should be excluded, etc. The situation escalated to the Florida Supreme Court, which ordered a manual recount of all undervotes in the state. The Bush campaign immediately appealed this decision to the US Supreme Court. Remember he was narrowly leading in the machine recount, so he had an interest in shutting it down.

Shawn: 7:53

On December 12, 2000, the Supreme Court issued its decision in Bush v Gore, and in a 5-4 decision, the court ruled that the Florida Supreme Court's method for recounting ballots violated the Equal Protection Clause of the 14th Amendment because it lacked uniform standards that would be applied across all counties.

Shawn: 8:13

Crucially, the court also ruled that no alternative method could be established within the deadline set by Florida's election laws, effectively halting the recount and resulting in Bush winning Florida by 537 votes, which gave him Florida's 25 electoral votes and the presidency, with an electoral college majority of 271 to Gore's 266. This was the first time in US history that the Supreme Court played a decisive role in determining the outcome of a presidential election, and many politicians and legal experts, including Jesse Jackson, Al Gore's running mate, joe Lieberman, harvard Law professors Alan Dershowitz and Lawrence Tribe, expressed disappointment in the court decision and suggested that Gore make further challenges. But Gore, driven by a desire to maintain national unity and respect for the rule of law, despite the contentious and divisive nature of the Supreme Court's ruling, chose to concede the election rather than trigger a potential constitutional crisis by undermining the legitimacy of the Supreme Court's ruling. Chose to concede the election rather than trigger a potential constitutional crisis by undermining the legitimacy of the court. Here's judicial scholar and professor at the University of Wisconsin-Milwaukee, dr Sarah Benesh, explaining why this mattered.

Dr. Benesh: 9:28

Most of the time, the court only has an impact on our lives because the other institutions decide to afford it an impact. You know, we, the court, you know famously, no purse, no sword, right? So the court can't get states to listen to it by dangling monetary incentives in front of them. The court can't send the National Guard in to implement an order, and so you know, the problem of a strong democracy that relies, at least in part, on an independent judiciary, which I think you know democracy does rely on that is that that power is not the same. It's not a fair fight, right? If you're going to fight the Supreme Court, it's not a fair fight because they really can't do anything without somebody to step up and say, hey, they just made a decision, we need to listen, the election, and you know, I mean you can certainly imagine a situation where that's not going to happen, or where that doesn't happen, and then that puts strain on the other institutions to see what's going to happen next.

Shawn: 10:47

The Supreme Court decision in Bush v Gore highlighted a problem with our constitutional design that was well known but not previously understood to be an urgent threat to our democracy, a vulnerability that could be, and would be, exploited toward authoritarian ends in the future. It underscored the impact of the electoral college system that a candidate can win the presidency without securing the popular vote, an election quirk that, as it relates to global democracies, is unique to the United States, and it consistently benefits the Republican Party. Of the six presidential elections we've had in the United States since 2000, republicans have only won the popular vote once in 2004. But because of the Electoral College, they've won the presidency three times. If we look at this another way, it means of the Electoral College, they've won the presidency three times. If we look at this another way, it means that the Democratic candidate has won the popular vote in 83% of presidential elections since 2000, but has only taken the presidency 50% of the time. So why do we have this system?

Shawn: 11:50

The framers of the United States Constitution designed the Electoral College to balance the influence of the more populous states with that of smaller states to, in their minds, ensure a more equitable representation across the nation.

Shawn: 12:03

They aimed to prevent a direct popular vote from enabling a demagogue or a radical populist to easily manipulate public opinion. Gain power and then abuse it. Gain power and then abuse it. Additionally, the system was intended to protect the interests of slaveholding states, as it allowed them to count enslaved individuals through the three-fifths compromise in determining electoral votes, which amplified the political power of these slave states without granting these individuals slaves any voting rights. Over time, what this has meant is that the small states have outsized influence in our elections and they tend to be more conservative, more Republican, giving Republican candidates an edge in presidential elections. Hillary Clinton beat Donald Trump in the popular vote by 2.1 percentage points, which means that Democrats need to do at least that much better than a Republican to win the presidency, and that's not good for trust in a system that relies on it. Here's Stephen Marche, journalist and author of numerous books about the potential for democratic collapse in the United States, including the book the Next Civil War.

Stephen Marche: 13:07

Right at the top of the list would be the electoral college system. You know, the big answer, which upset some people and I think it's so upsetting that a lot of people ignore it is that the problem with the United States is the United States Constitution. And don't take that as a like. The US Constitution is a work of great genius. It was written by geniuses. It is a work of real brilliance. It's just a work of 18th century genius and when Jefferson was in his later life, he said that a constitution really can only be 19 years old or else it becomes what he called a contract with the dead. And that's basically what you guys have now. You have this contract with the dead.

Stephen Marche: 13:51

Constitutional law is starting to become meaningless. There was a piece in the New York Times about professors who are stopping teaching constitutional law because what they have taught forever, which is that it's the system that's above politics, that interacts with politics in this way, has essentially stopped happening. And I think, when you look at many of the political problems in the United States, the root of them is the Constitution. Certainly, the electoral college system is decrepit and it is going to create a situation. I don't know if it's 2024, but it certainly could be where no one knows who won the presidency and the legitimacy of any president will be suspect. That's already happened. Most Republicans do not believe 2020 was a legitimate election in 2022. In the midterms, a number of solicitors, general, uh, one office who were election deniers, and their capacity to create election day carnage for the United States is really extreme.

Shawn: 14:58

This system, the Electoral College, also influences elections in the Senate. Here's Dr David Faris you might remember him from last week's introductory episode of After America, professor of politics at Roosevelt University and author of the book the Kids Are All Left. How Young Voters Will Unite?

Dr. Faris: 15:15

And then there are there are sins of commission right, and that is the creation of a series of institutions that do not meet contemporary standards or understandings of how democracy should work.

Dr. Faris: 15:25

The US Senate is a great example of an institution that was created to serve the political needs of the time, where you had 13 political entities that all kind of saw themselves as potentially independent states or free agents. You had to get them all on the same page, and so you had to give them you feel like you had to give states representation in the US political system in a way that I don't think that we would do today, the states not being as distinct political entities as they once were. But you know, having the same two senators for 38 million people in California and 600,000 people in Wyoming is not really a defensible design choice, given the way that human society has evolved over those 300 years. These are a series of like what we call counter-majoritarian institutions built into American democracy. In other words, they create multiple opportunities for political minorities to wield power through our institutions legally. So that's the Senate, that's the Electoral College that makes it possible for the winner of a single directly elected office to have fewer votes than their opponent when you add them all up.

Shawn: 16:25

This also disproportionately benefits Republicans. In each of the Senate elections of 2014, 2016, 2018, and 2020, republicans won more seats in the Senate than was representative of their popular vote share. In three of those elections, they actually won less than 50% of the vote share and received more than 50% of the seats in the Senate, which functionally means that they controlled the Senate in years that they hadn't won a majority of the vote share. They controlled when Democrats should have. From 2016 to 2018, donald Trump enjoyed unified control of government. Republicans controlled the House, the Senate and, obviously, the presidency. Had the popular vote dictated control of the Senate instead of the Electoral College, democrats would have controlled the Senate from 2016 to 2018. And that means the Trump tax cuts, which lowered the corporate tax rate from 35 to 21 percent and is projected to add $1.9 trillion to the federal deficit over the course of 10 years, would not be law. Also, had the Democrats controlled the Senate those two years, it's possible that Neil Gorsuch, confirmed in 2017, and Brett Kavanaugh, accused of sexual misconduct and confirmed in 2018, would not be on the Supreme Court right now. Unlike the presidency and the Senate, the framers designed the House of Representatives to reflect the will of the people by ensuring representation based on population. This was supposed to translate to a more responsive body that is accountable to the electorate by serving two-year terms shorter than the four-year term of the presidency and the six-year Senate term, to more closely align with public opinion, such that, if it changes dramatically, the electorate can update the composition of the House to represent their interests in short order. The Framers were trying to provide a direct link between the citizens and their government, ensuring that the interests and concerns of diverse and populous states were adequately represented in ways that were not present in the design of the presidency or the Senate. Additionally, the House holds the power of the purse controlling federal spending and taxation, which is supposed to further ensure representation of voter interests, as well as an accountability mechanism on the other branches. This design, though, also has vulnerabilities that can be exploited.

Shawn: 18:46

The Constitution mandates that each state, via their state legislature, redraw their congressional districts following each census, to align with the number of congressional seats they receive, based on the updated population information, which also coincides with the number of electors to the electoral college that the state receives. This process of redistricting gives the ruling party in each state an opportunity to exploit boundaries to political ends, a practice that is known as gerrymandering. Some states have drawn boundaries to break up or consolidate marginalized communities, particularly Black communities, in an effort to dilute the voting power of people of color. The Supreme Court has found that this type of racial gerrymandering is unconstitutional. Some states have also engaged in a type of gerrymandering that protects members of one party while eliminating or consolidating districts of another party. This partisan gerrymandering is largely legal and it can lead to the same outcome we see in the Senate the over-representation of one party in the House gaining more seats than is representative of their vote share.

Shawn: 19:51

In 2010, republicans, bolstered by the Tea Party wave, made huge gains in state houses around the country, giving them immense power in the redistricting process following that year's census, and they wielded that power. In North Carolina, republicans gerrymandered so extensively that, when the party won 53% of the vote share in the 2016 election, they actually won 77% of the state's congressional seats. In Pennsylvania, republicans took 13 of 18 seats, that's 72%, despite winning less than 50% of the vote of the vote. This manipulation of the redistricting process means that throughout the past 12 years, republicans have won control of the House numerous times, despite losing the popular vote to Democrats.

Shawn: 20:44

The fact that the design of the three policymaking branches of the United States government have weaknesses is unfortunate but, on its face, not necessarily alarming. No system of government is foolproof, but the fact that we have one major political party, the Republican Party, that benefits disproportionately from these weaknesses and in fact exploits those weaknesses is a danger to democracy. It creates an electorate that no longer trusts the system and its outcomes. I mean, if this is democracy the winner doesn't win then what is it good for? It also means that the policies the government produces won't align with the preferences of the majority. Here's Stephen Marche again.

Stephen Marche: 21:23

People don't trust their politicians. This leads to worse government. Worse government leads to worse policies, which leads to bad outcomes for people which it feeds into itself. Right, and the decline of trust in institutions, which is a sort of that has been constant since 1980, like a continuous decline in faith in institutions. I mean that has consequences and people tend to think, oh, it'll all work out, but actually most of the time it doesn't work out.

Shawn: 21:53

According to Pew Public Opinion polling, more than two-thirds of Americans support prioritizing the development of renewable energy resources and favor taking steps to becoming carbon neutral. Zero pieces of legislation addressing this have come out of the Republican House. About 63% of Americans believe that abortion should be legal in all or most cases, and yet 14 Republican-controlled states have outlawed abortion entirely since Roe was overturned in 2022, and three others have outlawed it after the first six weeks of pregnancy. Additionally, this exploitation of weaknesses in how our branches of government represent us, the people, contributes to extreme polarization in Congress. By drawing incredibly safe districts for themselves, republicans provide space for politicians with extreme behaviors and extreme views to win office with virtually no way to remove them.

Shawn: 22:48

This is why Marjorie Taylor Greene, matt Gaetz and Lauren Boebert can spiral out of control. There's no incentive to be responsible or bipartisan, or even just mature, because their districts have been drawn to be so conservative, so safe, that you just can't unseat them in an election. And when we have so many nonpartisan things that we need government to be doing to uphold the social contract, this spells disaster. This is Dr Tom Ginsburg, professor of international law and political science at the University of Chicago Law School and author of the book how to Save a Constitutional Democracy.

Dr. Ginsburg: 23:25

We're in this era of great polarization in which everything is getting politicized. But the fact is, for democracy you need bureaucracy, you need technocracy, you need certain realms in which people are performing not according to the political dictates of who's telling what to do, but according to, you know, technical norms. You know, the old progressive era slogan from over 100 years ago was that there's no democratic or Republican way to pave a street. There's just a technical, right way to do that, and we need to find the street pavers and empower them to build the streets. And that idea, you know, with all the attacks on the deep state and the bureaucracy, that idea seems to no longer hold for many members of the public. Yet you really do need neutral institutions generating information and, you know, undertaking the complex regulatory tasks of keeping a modern economy going.

Shawn: 24:18

Recognizing that any democratic system with powerful branches of government would have weaknesses and could potentially become weapons of anti-majoritarian tyranny or populist fervor, the framers built a system of checks and balances into the Constitution that would separate powers, distribute authority amongst the branches and allow each to check the actions of another. For instance, the president can veto legislation and the Senate can override a veto. The House controls the money. But one thing that the framers didn't give enough consideration to was the potential for factions or parties to form within government. That would transcend the independence of the branches. Here's Dr Ginsburg again.

Dr. Ginsburg: 25:00

Of course, madison also did not think that there would be political parties, and this is something that was, you know, sort of an assumption that was disproved within a few years of the Constitution's adoption, or almost immediately. He thought factions were evil and he was trying to prevent the emergence of what he would call factions, political parties. But once you have parties, then the operation of checks and balances works really differently. So one of my colleagues in law has written an important article now a couple decades ago, called called separation of parties, not powers. You know, if you have one party that controls all three branches of government, it doesn't really matter that there are three branches of government, and so that was kind of an assumption that Madison made that really hasn't panned out and it leaves us quite vulnerable to take over if you've got a particular partisan configuration.

Shawn: 25:51

If all of the branches of government are of one party, the incentive to check each other disappears. In fact, there may even be a counter-incentive to support each other in expanding and consolidating power, perpetrating abuses and dismantling critical democratic infrastructure. But thank God we have another branch of government free from political influence. Here's Dr Benesh again.

Dr. Benesh: 26:15

The framers intended for the courts to be a check against majority excess, and I do think that there was at least some consideration of the idea that you needed an institution that didn't need to be elected to sort of stand up for interests that were or ought to be protected by the Constitution but that were not likely to be protected through the popular government or at least are in danger of not being protected by the popularly elected government. So I do think that that's an intrinsic role of courts, not that they have to rule in favor of venue for the discussion over whether or not certain kinds of policies infringe on important rights that ought to be afforded to individuals. So I mean, I think the courts are always going to be influenced again by the predispositions of their members, or they're going to be influenced by the times and the public sort of generally the public support or interest in certain kinds of things. You know so, when we see the court lag behind, for example, on rights designations, sometimes that's just the court being a conservative institution, right that it takes a while for the court to recognize things. So it took a while for the court to understand the implications of, you know, say, statutes prohibiting sodomy or something, right? So I think there is a huge influence for ideology in terms of the court's role as a guardian of civil liberties or civil rights civil liberties or civil rights and we certainly are only going to expect courts that are sympathetic to those claims to make rulings in favor of those claims. But I'm sort of reticent to say that conservative courts don't care about that too. I just I think the objects of the questions are just different, right? So the Warren court was very interested in civil rights for African-Americans. So the Warren Court was very interested in civil rights for African Americans. The current court is very interested in civil rights for Christians.

Dr. Benesh: 28:27

I think the court's role is to interpret the Constitution, and the Constitution has a bill of rights that have explicit protections for various aspects of political participation, protections for speech and for assembly and for protections against, you know, police behavior and all those things, and those are in the Constitution, and the courts are again the arbiter of the Constitution.

Dr. Benesh: 28:51

And so I do think that that role of courts in democracy is not an ideological role, it's an actual role, regardless of whether you have conservative or liberal justices. But I think the extent to which they read those rights into particular situations is going to depend on their ideology. And so, you know, we have this disagreement between, say, the Warren court and the Roberts court over what equal protection requires, and both of those courts are saying it requires us to not discriminate on the basis of race, but the Warren court is suggesting that that only applies as against African Americans, while the Roberts court is suggesting that that always applies, even against white individuals or whatever. You know, the interpretations are going to be different. The role of the court is still, I think, in a democracy, to be that voice of the minority, whatever the minority is, and I don't think that's ideological.

Shawn: 29:49

The framers designed the judiciary to be an independent branch of government to ensure impartiality, uphold the rule of law and protect individual rights by providing life tenure and protecting judges from political pressures. They were hoping to create a judiciary that could act as a check on the legislative and executive branches. This structure was intended to prevent abuses of power, maintain balance and ensure that the Constitution and laws were applied fairly and consistently. But there are weaknesses here too that can aid in democratic erosion.

McConnell Clip: 30:22

Mr President, the next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country. So of course, of course, the American people should have a say in the court's direction. It is the president's constitutional right to nominate a Supreme Court justice and it is the Senate's constitutional right to act as a check on a president and withhold its consent.

Shawn: 30:52

The Constitution affords the president the right to nominate judges and justices to the federal judiciary and states that confirmation is contingent upon the advice and consent of the Senate. When Supreme Court Justice Antonin Scalia unexpectedly died in February of 2016, nine months before the presidential election, senate Majority Leader Mitch McConnell saw an opportunity and refused to even bring President Obama's Supreme Court nominee, merrick Garland, up for consideration. This was blatant political gamesmanship with the judiciary in a way that was unprecedented in American history and, as a result, donald Trump himself elected without carrying the popular vote, replaced Scalia and then, in September of 2020, when Supreme Court Justice Ruth Bader Ginsburg died, despite the fact that a presidential election was less than two months away, mcconnell shepherded Trump's nominee Amy Coney Barrett through Senate confirmation in a record 30 days, solidifying a conservative supermajority on the court. Here's Dr Faris again.

Dr. Faris: 31:56

The structure of the Supreme Court and how Supreme Court vacancies are filled. One you know it created this sort of lottery where you get to keep the office for life and presidents could get four opportunities to fill seats, or they could get zero opportunities to fill seats, you know, based on the length of their term, seen eventually as an extension of existing ideological and partisan divisions in society, and the two parties would then endeavor to fill those seats with the youngest people that they possibly can, who will stay on, in effect, until they die, or they can retire under a friendly president. I don't think the framers of the Constitution could have imagined political majorities blocking appointments by presidents that they're hostile to right. This is not how the system was designed to work, and yet a failure to spell out precise, defensible, like small-D, democratic, sensible procedures to fill vacancies on the Supreme Court has helped turn the whole institution into a political football that has, like has bled out a lot of its trust and legitimacy over the past 10 years.

Shawn: 32:57

Between 2015 and 2018, congressional Republicans and Donald Trump had exploited weaknesses in the House, senate and the presidency to obtain and maintain power that may have been constitutional but was straining limits of legitimacy by politicizing and infiltrating the Supreme Court, solidifying a conservative majority to the court. By exploiting constitutional vagueness and omission, republicans may have turned the court into another arm of the party, in lockstep with party goals and, in short order, the court set out remaking American social, economic and political life in ways that upended decades of jurisprudence and precedence and aligned with Republican policy preferences, and this has done severe damage to the one American branch of government designed to be apolitical, nonpartisan and impartial. Here's Dr Benesh explaining why this matters and how it advances authoritarian goals.

Dr. Benesh: 33:54

So I think, in the American judiciary's case, is polarization and partisan rancor, and what I mean by that is that, you know, judges are people and they're part of our political system, and our political system is more politicized than it has ever been, especially with respect to partisanship. So there are no moderates anymore in our government. There's no hope for moderates there's. You know, the last moderate nominee for the Supreme Court didn't even get considered by the Judiciary Committee. And so I think the weakness of the judiciary, I guess, is the weakness of the people that are on the judiciary and the weakness of the system that selects the people who are on the judiciary, and that's what makes it vulnerable to democratic erosion. Because if we have this overly politicized process by which to staff the bench, then it's almost impossible for that not to come out as a politicized bench.

Dr. Benesh: 34:57

And if the bench is politicized, then we can't make those arguments I was making earlier about why the courts should be empowered with judicial review If the court system is not a system that we can rely on to make fair and impartial judgments anymore.

Dr. Benesh: 35:15

And again, that's never been completely the case, because we've always had a judiciary staff with people right, and people are always going to have preferences and those are always going to exert at least some influence on their decisions. But if we can't even pretend anymore that being a judge is different from being a legislator, then I think we're vulnerable to some of these major problems. So, you know, in terms of how it could be used to advance authoritarian goals, if it gets captured by the party that is interested in advancing authoritarian goals, you know, if it becomes in some way part of the administration and holds the administration's values above the values of the people and above the values that are, you know, instilled in the Constitution, then there's you know there's no check on their decisions, right? So I guess the biggest danger then is, you know, when you have a captured institution that itself has very little checks on its authority, it can help contribute to that democratic erosion.

Shawn: 36:24

I've talked a lot about codified rules and the constitutional framework that both builds our American democracy but also leaves some room for exploitation. There's another, more squishy component of any healthy democracy, and that's norms and traditions, the unwritten rules and standards of behavior that maintain the integrity and functionality of democratic institutions. Norms ensure that political actors operate within the spirit of democratic principles, and this fosters stability. Norms develop because there are certain behaviors that can't explicitly be mandated but are necessary to a functioning democracy, things like respecting election results, upholding the rule of law and engaging in civil discourse. These are things that we have come to expect, but they aren't required.

Shawn: 37:11

We expect all politicians to respect election results, so when Donald Trump and some Republicans challenge the norm of conceding electoral defeat, as they did in the 2020 presidential election and as they're signaling that they'll do again this year, they are destroying faith in the electoral system and casting winners as cheaters and illegitimate. When Donald Trump and Republicans attack judges and the judicial process, they threaten the independence of the judiciary to be free from coercion or influence or fear. When Donald Trump and Republicans refuse to release tax returns or divest from business interests that might be impacted by their public work, they destroy transparency and make it nearly impossible to hold anyone accountable for unethical, maybe even illegal, behavior, and when Trump and Republicans engage in vitriolic discourse attacking the personal appearance of people, their sexuality, their gender, their race, their ethnicity, their religion. When they debase and dehumanize other people, they are creating an environment in which people we disagree with are no longer neighbors or even opponents, but evil and subhuman. In that environment, horrific things can happen to whole communities of people. Here's Dr Ginsburg discussing this.

Dr. Ginsburg: 38:25

The lack of insulation of many of our fundamental rules, the dependence on sort of norms of good behavior, means that we're particularly vulnerable in this time. So I think you know to some extent you are right. Now, then, the question is well, what is it that kept things under control in earlier eras? We've obviously had some challenging periods in American history, you know. I think parties have been really important there.

Dr. Ginsburg: 38:47

You know, the point of a political party is to take a longer term view than any particular leader. They extend the time horizon and if a leader says, oh, let's, you know, suspend elections or something, the party says, whoa, wait a minute. You know, you're a creature of us, we don't belong to you, and that's something which is really new. Now we now see that basically, the Republican Party is Trump's party and that may prevent them from acting as the internal check or from exercising internal checks that traditionally have sustained American democracy, because the parties, though they compete with each other, have both been committed to the long-term survival of democracy. So it's a particularly unique vulnerability now and I do worry about it.

Shawn: 39:29

I said at the top of this episode that we in the United States have been experiencing democratic backsliding since at least 2000. As we discussed here, the American Constitution, while designed to safeguard democracy, contains structural features and vulnerabilities that can be, and have been, exploited. Several aspects of its design, including gerrymandering, the apportionment in the Senate, the Electoral College, the rise of political parties, the politicization of judicial appointments and the erosion of norms, highlight these vulnerabilities, and they've all been to the benefit of the Republican Party, without representing a majority of the population. This all converged at an incredibly consequential time here in America. Just a reminder between 2016 and 2018, republicans held the presidency and the Senate without capturing the popular vote, and they then remade the Supreme Court, stacking it with conservative justices by ignoring norms and obfuscating constitutional obligations. So let's put this all together.

Shawn: 40:33

Imagine what the United States would look like today if the popular vote dictated who led our country. Hillary Clinton would have been president in 2016. Democrats would have held the Senate that same year, and it's that configuration that would have appointed three justices to the Supreme Court. Almost certainly Roe would still be the law of the land. Climate change would be taken seriously. Voting rights would be expanding, not contracting. Lgbtq plus rights would be protected, and the Ten Commandments would not be displayed in any public schools. Instead, we are a country in which we vote and the majority loses, and consequently we live under the rule and the policies that reflect the preferences of the minority of the electorate.

Shawn: 41:17

And so we endured an insurrection.

Shawn: 41:20

Reproductive health has been erased in nearly 20 states, lgbtq plus individuals are losing health care across the country, christian nationalists are in charge of the house, regulation is being rolled back, we're dismantling climate initiatives, the relationships that have maintained some stable global order since the end of World War II are under threat, and Donald Trump, dictator for day one, has remade the Republican Party and stands a decent chance at becoming president again.

Shawn: 41:57

And none of this reflects the will of the majority. If that's not some form of authoritarianism, it's authoritarian adjacent, and it is the result of Democratic backsliding in the United States. What we're looking at in this election is the potential to supercharge what has already been underway since at least 2000. And the Constitution is no bulwark against it. In fact, it's become a tool of its own demise. Dr Faris is going to close us out with some thoughts on this, but first I want to remind you to check back again next week for the third episode of After America, where we will look at historical examples of democratic collapse to help us understand what our future might look like if we were to experience a rise of authoritarianism here in the United States.

Dr. Faris: 42:49

You know, there's a reason that the American Constitution is not considered a model anymore for countries that are, for example, like brand new countries or countries that are making a transition from some form of authoritarianism to some form of democracy. Nobody really looks to the US Constitution anymore as like a template. I think there's a lot of reasons for that, some of them intentional, some of them unintentional. I think one of the big things that's going to structure all of my remarks is that the US Constitution, our political order, was written to serve like a pre-modern, pre-industrial, written to serve like a pre-modern, pre-industrial agrarian economy, with challenges and developments in human civilization that they could not possibly have foreseen in 1787. That's not to absolve the framers of the constitution from the things that, like they knew at the time, were wrong, and they did anyway out of expedience or out of actual commitment to those beliefs, but like.

Dr. Faris: 43:38

The reality is that you have a very short, not especially specific document that you can like read on your lunch break that governs a modern society of some 340 million people under economic, technological and political circumstances that the framers of the Constitution could scarcely have imagined, and that document, in that political order, has not really been meaningfully updated in decades, because the procedures that the framers created to make adjustments to the system have turned out to be such a high bar that we actually haven't amended the constitution in like 33 years, right? We haven't amended the constitution for anything particularly meaningful since the 1970s, right? And so to me, one of the big weaknesses of the American government, the American political system, is that it is both profoundly outdated and extraordinarily rigid in terms of like efforts to adjust or tinker with the basic architecture of the system. It's close to impossible to change anything that's actually spelled out in the Constitution, and so the Constitution, to me, is one of the bigger obstacles to rescuing American democracy.