Deep Dive with Shawn C. Fettig

After America E7: Courting Disaster - Exploiting Judicial Power for Authoritarian Ends

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What happens when a cornerstone of democracy begins to show cracks? On this episode of After America as we scrutinize the U.S. Supreme Court's transformation and its far-reaching impacts on American democracy. We trace key moments from Justice Antonin Scalia's death to the rapid confirmation of conservative justices under President Trump. This episode unpacks the historical roots of the judiciary, its intended role as an independent arbiter of justice, and the seismic shifts that have led to a 6-3 conservative supermajority.

We confront the controversies marring the Supreme Court's image, from contentious nomination processes to ethical dilemmas involving Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh. We also explore how these controversies are eroding public trust and threatening the judiciary's credibility.  Landmark cases like Roe v. Wade and Dobbs v. Jackson Women's Health Organization underscore the judiciary's evolving influence on societal values and individual liberties, and alert us to the grave consequences of increasing partisan divides in judicial appointments.

Is American democracy at risk? We discuss how the judiciary might bolster or dismantle democratic values amid these challenges. From the strategic delays in confirming justices to the potential chaos of a future Trump presidency, this episode offers a sobering look at the judiciary's pivotal role in safeguarding—or undermining—democratic principles.

Guests: Dr. Sara Benesh, Dr. Tara Grove, Dr. David Faris, Dr. Tom Ginsburg, and Stephen Marche

Credits:
Infados - Kevin MacLeod
Dark Tales: Music by Rahul Bhardwaj from Pixabay

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Shawn:

Within hours of Justice Antonin Scalia's sudden death in February 2016,. Republican Senate Majority Leader Mitch McConnell announced that, given the fact that the death occurred during an election year, the next president should decide who fills the vacant seat. When, in March of that year, then-president Barack Obama nominated Merrick Garland to the court, mcconnell kept his word and took the unprecedented step of refusing to hold hearings or a vote on the nomination. In doing so, mcconnell wrapped the court in politics, something the founders deliberately tried to avoid. This maneuver effectively politicized the Supreme Court's confirmation process. Mcconnell's gamble paid off when Donald Trump won the electoral vote, thus the presidency. That November, trump subsequently nominated Neil Gorsuch, who was confirmed in 2017, restoring the court's conservative tilt.

Shawn:

The situation further devolved with the retirement of moderate Justice Anthony Kennedy in 2018 and the death of liberal Justice Ruth Bader Ginsburg in 2020. Trump replaced Kennedy with Brett Kavanaugh, and Ginsburg's death just weeks before the 2020 election led to the rapid confirmation of Amy Coney Barrett, despite McConnell's previous position on election year nominations. This series of events cemented a 6-3 conservative supermajority on the court, leading to an abrupt shift in how the court approaches precedent and decision-making, issuing opinions that favor conservative ideologies, often over the majority will of a diverse electorate. It's bad enough that this erasure of procedural norms in judicial appointments has led to this situation, but imagine what happens to democracy if the justices themselves were to become corrupted or politicized. Oh wait, how does a democracy survive if the final arbiter of justice, the keeper of liberty, puts its finger on the scale in a way that undercuts those principles it's intended to uphold? And what if it actually advances authoritarian goals? Welcome to After America. I'm your host, s C Fettig. Find, follow and like Deep Dive with Shawn C Fettig on your favorite podcast platform and on YouTube, and check back every Sunday through September for new episodes of After America as we examine the precarious state of American democracy, how we got here and where we might be headed. The clock is ticking. Democracy is at a crossroads and the time to act is now.

Shawn:

The judiciary plays a crucial role in a functioning democracy by upholding the rule of law, ensuring justice and protecting individual rights. As an independent branch of government, it serves as a check on the executive and legislative branches, preventing abuses of power and ensuring that laws and policies adhere to constitutional principles. Courts can invalidate laws and actions that violate constitutional rights, safeguarding democratic values and principles. The judiciary also provides a mechanism for resolving disputes fairly and impartially. It protects minority rights against the tyranny of the majority, ensuring that all individuals, regardless of status, have equal access to justice. By interpreting and applying the law consistently, the judiciary maintains social order and promotes stability, both of which are essential for a healthy democracy. Additionally, the judiciary plays a critical role in enforcing accountability by holding public officials and institutions responsible for their actions. This helps to prevent corruption, abuse of power and ensures transparency in governance. On this week's episode of After America, we're going to examine how courts can bolster democracy and also how they can dismantle it.

Shawn:

In the past couple of years, numerous investigative reports have revealed concerning issues related to some Supreme Court justices. One prominent issue involves Justice Clarence Thomas, who failed to recuse himself from cases related to the January 6th Capitol riot, despite his wife, ginny Thomas' active involvement in efforts to overturn the 2020 presidential election. Additionally, reporting has revealed that Thomas has taken high-value gifts from parties with concerns before the court. Justice Samuel Alito has also been scrutinized for not recusing himself from cases that involved companies in which he's owned stocks. He also apparently flew an upside-down flag outside of his house, a sign of distress that was adopted by some January 6th insurrectionists while he was participating in decisions related to January 6th. Another notable instance is Justice Brett Kavanaugh's refusal to step aside from cases involving entities tied to his previous employers and associates.

Shawn:

In a democracy, the judiciary's legitimacy hinges on public confidence in its impartiality and its fairness. When ethical standards are perceived to be compromised, it jeopardizes the foundational principle that justice is administered without favoritism or influence. The failure to adhere to strict ethical guidelines and recusal standards not only tarnishes the image of the judiciary, but also threatens the checks and balances system integral to democratic governance, and when the court or its members appear partisan, it damages the court's credibility. The impact on democracy is profound. Without trust, the Supreme Court's decisions are viewed skeptically, potentially fostering cynicism and disengagement among citizens. This weakens the judiciary's role as a guardian of constitutional rights and can embolden other branches of government to overstep their bounds, risking democratic backsliding and the erosion of civil liberties.

Shawn:

But we might already be there at the demarcation line, at the tipping point. According to Gallup, in September of 2020, the Supreme Court's approval rating among US adults limited from 58% a year earlier to 40%. That's an 18% drop in one year, at just about the moment that the newly minted conservative supermajority declined to block a Texas abortion law presaging its 2022 Dobbs v Jackson Women's Health Organization decision that overturned Roe v Wade. The court's approval rating has not improved since. It makes you wonder how did the court get here from one of the most revered institutions in the American democratic design to one of the most suspect? This is Dr Sarah Benesh, judicial scholar and chair of the political science department at the University of Wisconsin-Milwaukee.

Dr. Benesh:

Obviously, the whole context of the founding was the Articles of Confederation and their failure was the Articles of Confederation and their failure right. And so, you know, I think a lot of what the framers talked about and tried to figure out was how to fix, how to create a government that didn't have the shortcomings that the Articles of Confederation had and, you know, in many ways, you know, sort of trying to make sure they designed a format that would work, based on their historical knowledge of, you know, other models of democracy, right. So they were philosophers in some ways, in a way that our current members of government are. They were thinkers, and that is not to put them on a pedestal, because, god forbid, I don't want to do that, but I think they were. Just they were trying to figure out, you know. So here are these historical examples of governments gone wrong, and we have this example of our own Articles of Confederacy gone wrong.

Shawn:

The founders created the federal judiciary as an essential component of the new American government to ensure the rule of law, protect individual liberties and provide a check on the other branches of government. Their vision was influenced by their experiences under British rule, where abuses of power and a lack of judicial independence were prevalent. The Articles of Confederation, the United States' first governing document, lacked a strong federal judiciary, leading to inconsistencies and weaknesses in the application of laws across the states. During the Constitutional Convention of 1787, the Founders aimed to address these issues by establishing a separate and independent judiciary. They believed that a robust judiciary was necessary to interpret and apply the Constitution and federal laws uniformly. The judiciary would serve as a guardian of the Constitution, ensuring that neither the executive nor the legislative branches could exceed their constitutional powers.

Shawn:

The Federalist Papers, particularly those authored by Alexander Hamilton, played a crucial role in shaping the design and intent of the federal judiciary. In Federalist no 78, hamilton emphasized the necessity of an independent judiciary to interpret laws and protect individual rights, describing it as the least dangerous branch because it had neither force nor will, but merely judgment. The essays argued for lifetime appointments to ensure judicial independence and impartiality, free from political pressures. These writings influenced the Constitution's framers, reinforcing the judiciary's role as a check on other government branches and a protector of constitutional principles and democratic governance. Dr Benesh explains.

Dr. Benesh:

I think the main difference between you know, in the ideal, what a judiciary would do versus what a legislative or an executive would do, is this and you know, maybe this doesn't apply to every democratic court but this idea of a professional and dispassionate branch of government that is independent and expert on what they're doing. You know so, when the framers talked about this you know, if you read the Federalist Papers when they talked about the judiciary, they talked about the judiciary as composed of people well, men, they said, that were learned in the law and that had studied it and had taken time to understand it, and that that is the branch of government that then needs to be independent from the other branches. And so this is why they have good behavior in the Constitution and why the selection system is supposed to be less directly connected to the people. So there is this, this branch that was going to be unique in the government. You know so. So both the Congress, at least the House, and the president, at least in part, I guess, were elected, or elected directly from the people, whereas the you know, the courts have this extra kind of step of distance, I guess, from the public.

Dr. Benesh:

So the argument is that when you have a judiciary or a branch of government which is composed of experts who are making their decisions dispassionately, relying on statutes and the Constitution, that will be different than the other branches of government, because the Supreme Court or the court system won't have the interests and the pressures that the other branches will have.

Dr. Benesh:

You know. So, this having to rely on other people for your tenure, having to appease, you know, the various factions in society. None of that is relevant to the courts, and so the Hamilton and the Federalist Papers talks a little bit about, you know, whether or not the judiciary should just be an arm of the courts, and so the Hamilton in the Federalist Papers talks a little bit about, you know, whether or not the judiciary should just be an arm of the legislature, and he argues that that shouldn't be the case. He argued that it shouldn't be just an arm of the legislature because the legislature has all these problems of having influence by donors and interested groups and factions, and you know their limited tenure and all these other things that the court, you know, by design, doesn't have influencing them. So they, you know, in theory, should be able to make decisions that keep the other branches from giving in to sort of the whims and the passions of the day.

Shawn:

One of the most powerful tools that the judiciary has is judicial review, established by the landmark case Marbury v Madison in 1803, which allows courts to strike down laws and executive actions deemed unconstitutional. Here's Dr Benesh again.

Dr. Benesh:

So judicial review, is this idea derivative of the idea that we have a constitution that is a supreme document? So you know, the constitution itself has a supremacy clause that says that it is above everything else, right? So anything, any law that is put forward by a state or by the Congress or by a locality, anything that doesn't conform to the regulations laid out or the system laid out in the Constitution, it's null and void. It has to be null and void. And, of course, again, that raises the question who gets to decide when something is abhorrent to the Constitution? And in our design, and this is not in the Constitution, right, there's no line that says, and you know, and the Supreme Court shall be the final arbiter. But it was really, I think, assumed by the founders and assumed by the people, given the tradition of courts in even the colonies, that the decider is the court, is the court, and you know, the Federalist Papers talk about this too that if we're going to have a document that is supreme and if we're going to base our system on this rule of law and this foundational document, we have to have a body that is charged with its protection and it can't be the people that are elected that are, you know, trying to enact the whims of the time, that have other interests at heart. It has to be the court, especially the federal court and especially the Supreme Court, that has lifetime tenure and isn't beholden to Congress for their salary, or they at least can't be diminished, and, you know, has this sort of history of being, you know, learned in the law, has this sort of history of being, you know, learned in the law. All these things. It should be that institution, that's the institution that should be the one to decide those questions.

Dr. Benesh:

So there's lots of debate over, you know, judicial review. Obviously, because what happens when a court engages with judicial review is that it looks at a statute that was passed by Congress, maybe, or was passed by a state government, and it says that statute is inconsistent with the Constitution. Therefore it's null and void. So what has happened then in that instance, especially when it's the Supreme Court doing that, is a federal institution which has life tenure, beholden to no one, you know, with an asterisk right.

Dr. Benesh:

So there's separation of powers, considerations, but basically this independent branch of government that does not rely on an election for office, has decided that the elected bodies that we put into office to put forward our interest as citizens are wrong and that what they want to do is not allowed, and so that brings up this whole you know counter-majoritarian difficulty, which is this idea that we have, you know, laws that are enacted by the majority of the people, at least the representatives of the majority of the people that are being struck down by this. You know nine member life tenured federal institution, and so some people have a real problem with that. That you know. If we're in a democracy, people are supposed to rule right, but I think what the founders would say is yes, but the people agreed to the Constitution. That has to be the guidepost for everything, and so this independent judiciary is exactly what we need to sit down with the legislation and say this is acceptable and this is not.

Shawn:

This power of judicial review has been crucial in shaping American society, having a profound impact on civil rights and liberties, for good and for bad. Brown v Board of Education, decided in 1954, was a defining moment in American history. The Supreme Court's unanimous decision declared that state laws establishing separate public schools for black and white students were unconstitutional. This ruling was a major victory for the civil rights movement and set the stage for further efforts to end racial discrimination. The case demonstrated the judiciary's role in challenging societal norms and advancing justice. It's also this case that really solidifies the norm that court orders must be obeyed. Dr Tara Grove, vincent and Elkins, chair in Law at the University of Texas School of Law, who also served on President Biden's commission on the Supreme Court of the United States, describes this norm in greater detail.

Dr. Grove:

So I think we have seen in the last several years I guess the last probably eight years a real pressure on norms in a lot of our system, norms being changed, norms being violated and then modified over time. And of course that's how norms work right. They exist only insofar as people are willing to obey them. They tend to be socially or politically enforced, but they're not law. So a few years ago I published a paper about judicial independence and norms of judicial independence which at the time I thought when I first started the paper I thought it was going to just be a historical project. And it turned out to be have a little more modern day relevance than I thought. And I looked at several norms One, the norm against packing the Supreme Court, expanding the Supreme Court, the norm that we don't just fire federal judges by abolishing their courts and the norm that you obey federal court orders. And what I found was the norms became really, really strong starting around the mid-20th century. What really struck me was with respect to the norm of compliance century. What really struck me was with respect to the norm of compliance.

Dr. Grove:

So when I got to the 1950s and 60s, the desegregation era, what I thought I would find were lots of political leaders who were devoted to segregation right, especially in the South, and that they would say we don't like Brown versus the Board of Education. I expected that, but I expected them also to say don't like Brown versus the Board of Education. I expected that, but I expected them also to say but when a federal court issues a desegregation order, you have to listen to it, or at least other people saying it's bad not to listen to it, including segregationists themselves. And that's not what I found. What I found was people not only opposing Brown versus the Board of Education but also saying you don't have to listen to the federal court orders and it's okay not to. And that really surprised me and that was a sign to me that the norm was not strong at that time, certainly not as strong as I expected it to be by the late 1950s and early 1960s.

Dr. Grove:

But I think Brown and the desegregation orders that came after it are one of the main reasons that we have the current norm of obeying federal court orders, because, as Brown became a case that was just central to what many people call our constitutional canon, that is one of the most important cases in American constitutional history.

Dr. Grove:

The opposition to Brown and the opposition to desegregation orders became one of the most shameful moments in American history, and the people who opposed desegregation orders went from being heroes at the time among their fellow segregationists to being historical villains.

Dr. Grove:

And I think that really solidified the norm that we have today that people have to abide by federal court orders. And I think that one challenge we face when people today complain about the federal judiciary and it's certainly not on one political side at all informed by their own jurisprudential in the case of judges, but also ideological views in the case of political actors People have always complained about the federal courts, but in recent years I have heard folks actually saying we should not necessarily abide by federal court decisions with which we disagree, and I've seen this on all sides of the political aisle. Now I still think the norm is strong. I think the norm against court packing has been weakened far, far more than the norm that says you have to obey federal court orders. Both the Trump administration and the Biden administration have abided by lots of federal court orders that they didn't like and even as people have pushed against lots of other norms, this norm has remained relatively stable.

Shawn:

Roe v Wade decided in 1973, was another landmark case. The Supreme Court's decision recognized a woman's constitutional right to privacy, which included the right to have an abortion. This ruling was significant not only for women's rights, but also for its affirmation of individual liberties. The case highlighted the judiciary's role in interpreting the Constitution in a way that adapts to changing societal values and norms. And then the 2022 Dobbs v Jackson Women's Health Organization decision overturned Roe v Wade, eliminating the federal constitutional right to abortion and granting individual states the authority to regulate or ban abortions. As a result, numerous states enacted restrictive abortion laws or outright bans. Previously blocked by the role precedent.

Shawn:

The judiciary was initially conceived as an apolitical branch, but it's not been immune to politicization, which has accelerated in recent decades, with judicial appointments becoming highly contentious. The process of nominating and confirming judges, especially to the Supreme Court, has become a battleground for ideological control. The fact that conflict and controversy surrounding the confirmation process exists isn't new, but the speed at which it occurs is. In 1987, reagan's pick for the Supreme Court, robert Bork, was intense and controversial, with Bork's criticism of civil rights and privacy precedents alarming many Democrats and ending in Bork's rejection with a 58-42 vote against. The confirmation hearings of Clarence Thomas in 1991 were particularly contentious. Thomas faced allegations of sexual harassment from Anita Hill, a former colleague. The hearings were highly charged and polarized public opinion.

Shawn:

Despite the controversy, thomas was confirmed by a narrow margin. These controversies at the time were considered rare and unique. Not so today, when confirmation battles are no longer just about the qualifications of the nominees, but about the ideological balance of the court and its potential rulings on hot-button issues like abortion and gun rights, discrimination and health care. As already mentioned, nobody understood this better and played a more critical role in creating the contentious confirmation environment we now live in than Mitch McConnell and his refusal to fill Justice Scalia's seat in 2016 until after the election. This tactic emphasized the politicization of Supreme Court appointments, prioritizing party control over traditional norms, and it extended to accelerating confirmation of conservative judges to lower federal courts, significantly altering the judiciary's ideological balance and reinforcing the trend of highly contentious and partisan judicial nomination processes. And it's played out as you might expect. Dr Grove describes the immediate and potential future impacts of this change in confirmation norms.

Dr. Grove:

When Justice Scalia passed away in February 2016,. I think from the perspective of Republicans, democrats had been bad actors in lots and lots of ways, and so they were totally justified in doing what Senator Mitch McConnell did, which was very, very soon I think it was within minutes of Justice Scalia passing away. Mitch McConnell said that the Senate would not confirm anyone that Barack Obama put on the Supreme Court, which was, to my mind, extraordinary and kind of horrifying that someone would do that. But I think from the perspective of the Republicans, it was justified by all the bad action before. From the perspective of Democrats, that had not happened at the Supreme Court level certainly nothing, nothing akin to that and it was totally unjustified certainly nothing, nothing akin to that. And it was totally unjustified and, I think, very bad for the United States Supreme Court. Because my worry after that is that, whatever happened before and you know again, I think each political side has a different story as to how to understand the Merrick Garland situation I think what it means going forward is that whenever the president and the Senate are controlled by different political parties, no Supreme Court justice will be confirmed. And I will say and I have said this in a sorted context, I do not believe any court of appeals judges will be confirmed either, and if any are, it will be few and far between, and probably very few federal district court judges as well, because I think that the attention, the deserved attention to the Merrick Garland scenario just brought out in the public eye something that had been happening at the lower federal court level, but at a much, far less noticeable these fights, and so I think each political side will not be able to justify confirming someone to a high level of the federal judiciary, someone who is nominated by an opposing political party. And note, I'm saying this I don't think it matters which party controls the presidency and which party controls the Senate. As long as they are different, I think no one will be on the US Supreme Court, will be confirmed in the US Supreme Court.

Dr. Grove:

Why is this bad? Well, it's obviously very difficult for our politics, but also, just thinking about the judiciary, rather than worrying about the expansion of the Supreme Court and I don't see any scenario in which that is likely to happen I worry a lot about the size of the Supreme Court actually shrinking. So, rather than the incredibly expanding Supreme Court, we could have the incredibly shrinking Supreme Court. So if a Supreme Court justice leaves the court either because of death or resignation, if the presidency and the senator from different political parties, no one, I predict, will be confirmed to that seat. So we go from a Supreme Court of nine to eight, to seven, and so on, until we have a presidency and a Senate that are controlled by the same political party.

Shawn:

This confirmation ecosystem highlights how political parties now view judicial appointments as a means to achieve policy goals that may not be attainable through the legislative process. This has led to increased efforts to stack the courts with judges who align with specific political ideologies, threatening the judiciary's independence and its role as a neutral arbiter and check on the other branches. When judges are perceived as political actors, their decisions are viewed through a partisan lens, Trust declines and the environment generated in that atmosphere can chill those with the best of intentions from even wanting to participate and contribute, leaving the doors open for the most extreme ideological bad actors to flood the zone. Dr Grove describes this.

Dr. Grove:

When judges are only going to be confirmed if the president and the senator are in the same political party confirmed. If the president and the senator from the same political party, you're more likely to get judges that are at least seen as being at the extremes, even if they're not actually as extreme as they are perceived, and I think this has a lot to do with the abolition of the filibuster as well. So in 2013, the Democrats got rid of the filibuster for lower federal court judges, and then in 2017, a Republican-controlled Senate got rid of it for the Supreme Court as well, and so all you need are 51 votes in the Senate or 50, depending if the vice president and the president are from the same political party the vice president breaking a tie to see federal judges as being from a particular ideological club and not having as much bipartisan appeal. I think that one of the problems with the filibuster era was that it was a very grueling process for federal judges. They had to, you know, be liked by everyone, but one of the benefits of that system was also they had to be liked by everyone, and so you had some some moderation on the federal judiciary. So I think you lose that, and again, it doesn't mean that the judges actually are partisan.

Dr. Grove:

I think that many members of the federal judiciary appointed by both political parties are extremely well-meaning, extremely good at their jobs and trying hard. But there's still this perception that these guys were appointed by the other team and they're not my team, and I think that's very problematic. I think also the problem that people may not want to be federal judges when it becomes an extremely difficult and polarized situation. I mean people going up for federal judgeships are vilified by folks supporting the opposing political force, and not everybody wants to put himself or herself or themselves through that, much less their families. That's an extremely difficult process and I think this is an issue not just for the federal judiciary but for a lot of governmental appointments that have become much more divisive than they used to be.

Shawn:

If politics prevails over independence on the court, if parties can game the confirmation process to stack the courts with ideological teammates, judges may actually become political actors, and when that happens, courts become a lightning rod for controversy and conflict. Decisions on landmark cases, rather than being rooted in case law and precedents, instead often align with the political ideologies of the appointing presidents, reinforcing perceptions of bias, if not actual bias. Dobbs, which overturned Roe v Wade, and the court's decision in Trump v US, granting broad immunity to presidents, reflect deep ideological divides, not only on the court but also in the electorate, and have significant political repercussions. Judges and justices are also increasingly involved in rulings that impact the political landscape, such as voting rights, gerrymandering, immigration and executive powers. Gerrymandering, immigration and executive powers. Their decisions can directly influence electoral outcomes and policy directions, blurring the lines between judicial impartiality and political influence. When those decisions routinely break along ideological lines, with conservatives on one side and liberals on the other, it reinforces the view that federal judges and justices are political actors, not impartial arbiters, within the broader political system, and that their decisions are politically motivated.

Shawn:

Public trust in the judiciary is essential for its effective functioning. When people perceive the courts as fair and impartial, they're more likely to accept judicial decisions even when they disagree with the outcomes. On the flip side, when judicial decisions are viewed through a partisan lens, it erodes the legitimacy of the judiciary and its ability to function effectively. This takes a very real toll on the rule of law and the social contract. Dr David Faris, associate Professor of Political Science at Roosevelt University and author of numerous books, including it's Time to Fight Dirty how Democrats Can Build a Lasting Majority in American Politics, describes this toll.

Dr. Faris:

I think the court is definitely compromised. Sense among political scientists and like people that comment on politics and study it very closely, that the court has lost a great deal of its legitimacy over the past 10 or 15 years, and I think particularly over the last like six years or so. I think the reason that it's losing legitimacy is multifaceted. There has certainly been revelations about ethics that are pretty disturbing. You know the sense that, uh, that those nine people are being wined and dined by various different people to try to win their favor is, you know, something that really just cries out for the kind of reforms that are being pushed by groups like Fix the Court to try to impose a meaningful ethics regime on the Supreme Court. The reason it's so hard is that there is no real institution that can hold the court accountable outside of Congress, and the efforts to hold members of the court accountable in Congress are subject to the same problems of constitutional underspecification as everything else is, which is like the framers didn't anticipate political parties who would be backing the individual justices and who would not be willing to impeach and remove them. And so members of the court, I think over the past 20 years, have been and it's not just Thomas and Alito right, but like they're the worst avatars of it. But they have been acting as if their power is truly unaccountable, just like going on vacation with like right-wing billionaires and taking their money and hanging out on their yachts and then ruling in ways that are exactly what those people would have wanted you to rule. If that's not against the law, you have a real problem, and I think that kind of like basic level corruption and influence purchasing is something that, like I've you know, almost everybody should be able to agree that this is wrong and like this is something that we have to figure out a way to rein in. But I don't think that the crisis in the court is really is produced by that sort of like routine corruption that we're seeing in Clarence Thomas's filings.

Dr. Faris:

I think it's a factor, but I think the biggest problem with the court's legitimacy right now is that it has a right-wing supermajority that was produced by the Constitution's quirks and flaws, that is making important decisions for a society of 340 million people that don't have any meaningful basis in what those 340 million people believe or want, and that, to me, is the heart of the problem. It's a right-wing supermajority that was produced by the quirks of the electoral college, allowing George W Bush and then Donald Trump to win elections that they should have lost. It's produced by the lottery system itself right, where presidents are not entitled to certain numbers of picks for the Supreme Court. They have to wait for somebody to die or retire. It was produced by the Constitution's failure to spell out the Senate's obligations under advice and consent what are they supposed to do with a presidential nomination? And by leaving that underspecified, they allowed Mitch McConnell and the Republicans to correctly assess that nothing in the Constitution actually requires them to hold hearings or to approve a nomination to the court. That was perfectly legal. They correctly read the Constitution. They didn't have to do anything.

Dr. Faris:

And so the sense to which I think ordinary people perceive the court's current composition as being somehow illegitimate, produced by undemocratic or counter-majoritarian institutions and procedures and corruptly, governing in a way that is highly, highly disruptive and seems to have no bearing whatsoever to the actual needs of American society.

Dr. Faris:

The Supreme Court's commitment to the individual right to bear arms, which it slightly walked back this week by like one inch by agreeing that domestic abusers should not just be able to let go by a gun.

Dr. Faris:

Misinterpretation of the Second Amendment in such a way that they're imposing this completely bankrupt and bananas regime of gun ownership on a country that does not want it.

Dr. Faris:

That is serving the interests of a political and public opinion minority, and I think those decisions are as much a problem as Clarence Thomas's trips on yachts, and I think even more so when you have the public correctly seeing that the composition of the court was sort of like ill-gotten and what they're doing with that power is they're taking rights away from people or expanding rights. You know, if you can't see my air quotes here, you know the right to individual gun ownership, expanding that right in a way that has been profoundly destructive to American society, to the civic fabric of this country. I think all of those things have contributed to making the Supreme Court a political football, an institution that is not working. Not just that it's not working as it was intended, I think it's working in precisely the opposite way that the founders of the Constitution meant for it to be Like. I do not think that they wanted a Supreme Court this powerful.

Shawn:

Given the court's critical role in democratic systems, their independence and impartiality are paramount. They wield immense power that, if and when compromised, can become a direct threat to democracy. And this can happen in two ways. First, the courts can be exploited by bad actors to achieve authoritarian goals. Here, the courts are a pawn. Authoritarian regimes often exploit and manipulate the judiciary to consolidate power and corrode democratic institutions. By packing courts with loyalists and by controlling the courts, these regimes ensure that judicial decisions favor their interests and suppress dissent. This tactic has been employed in countries like Hungary, poland and Turkey, where the judiciary has been co-opted to serve authoritarian agendas. In the United States, there are worrying signs of similar trends, where judicial independence is under threat, posing risks to the separation of powers and the rule of law. Efforts to weaken judicial independence often manifest through attacks on judges who make rulings unfavorable to the government or ruling party. For instance, former President Donald Trump frequently criticized judges who ruled against his administration's policies, calling them so-called judges and questioning their legitimacy. Such attacks can erode public confidence in the judiciary and intimidate judges, potentially influencing their decision-making. Additionally, the politicization of judicial appointments exacerbates these concerns. Again, the strategic blocking of Merrick Garland's Supreme Court nomination in 2016 and the rapid confirmation of Amy Coney Barrett in 2020 highlight the extent to which judicial appointments have become tools of partisan politics. These actions threaten the judiciary's role as a safeguard of democracy. When the judiciary becomes a tool for partisan or authoritarian purposes, it loses its ability to check and balance the other branches of democracy. When the judiciary becomes a tool for partisan or authoritarian purposes, it loses its ability to check and balance the other branches of government. This erosion of judicial independence can lead to unchecked executive power, the marginalization of minority rights and the dismantling of democratic norms, ultimately jeopardizing the rule of law and democratic governance in the United States.

Shawn:

Another way that courts can aid a rise of authoritarianism is the courts themselves can be active participants in sabotaging democracy.

Shawn:

Here the courts are conspirators. Courts themselves can also support and advance authoritarian goals and tendencies by legitimizing executive overreach, curtailing civil liberties and endorsing discriminatory practices. The 2000 Bush v Gore Supreme Court case is a critical example of the judiciary playing a role in shaping political power and influencing a democratic system. The court's decision to halt the Florida recount effectively decided the 2000 presidential election favoring George W Bush. This ruling at least appeared to reflect judicial partisanship and undercut the democratic process In 2013,. The Supreme Court's decision in Shelby County v Holder struck down key provisions of the Voting Rights Act, removing federal oversight of changes to voting laws in jurisdictions with histories of discrimination. This ruling allowed states to implement restrictive voting measures that disproportionately affect minority voters, and they did almost immediately, which has led to a wave of voter suppression tactics, eroding the democratic principle of equal access to the ballot. Dr Tom Ginsburg, constitutional scholar and professor at the University of Chicago Law School and author of Democracies and International Law, expounds on this.

Dr. Ginsburg:

I think Madison's greatest mistake was assigning the management of elections to what he thought would be nonpartisan institutions but turned out to be very partisan, and those are state legislatures. Time, place and manner of elections are determined by state legislatures, which, as we know, are very partisan. And so the whole phenomenon of gerrymandering and now in the last few years, really partisan bills being passed to constrain voting that just flows directly out of Madison's flawed assumptions. So this is really one of the things that make us very vulnerable relative to other countries.

Shawn:

Under the Trump administration, the judiciary's role in advancing authoritarian tendencies was evident in the 2018 case Trump v Hawaii, which upheld Trump's travel ban targeting several predominantly Muslim countries.

Shawn:

The decision legitimized discriminatory policies under the pretext of national security. By endorsing executive actions that infringe on civil liberties, the judiciary actually facilitates authoritarian governance. And, more recently, as already mentioned, the judiciary actually facilitates authoritarian governance. And, more recently, as already mentioned, the court's decision in Dobbs eliminating a federal right to abortion, gave state governments enormous latitude to infringe on women's liberty to make decisions about their own health care and bodies. And, in Trump v US, afforded the president immense immunity from prosecution, which could lead future presidents to condone, even commit, crimes against perceived enemies, opponents and disliked outgroups without fear of accountability. If you couple the ways in which the Supreme Court is already being exploited by bad actors to solidify minority, rule over the majority, discriminate against outgroups and limit civil liberties, with the ways in which the court itself is proactively supporting authoritarian goals by validating executive overreach, enabling discrimination and threatening democratic processes, it's easy to see the trouble we might already be in. Under a second Trump term, the US Supreme Court could face significant changes and increased politicization, posing substantial threats to democracy. Dr Benesh explains her concerns.

Dr. Benesh:

I am super concerned that if Trump wins, he will do what he says he's going to do, which is be a dictator, at least for the first day. I think there's a lot of damage that a president can do unilaterally, especially when, in these super partisan, super polarized times, his party is unlikely to stand in his way, which means, of course, that Congress is unlikely to stand in his way. To the degree that the Democrats retain at least some control of the Senate. There's a slight check there, but the Supreme Court would have to be relied on also to stand in his way.

Shawn:

Trump's ability to appoint more justices could further tilt the court's ideological balance, further solidifying conservative control that doesn't represent the will of the majority and has already signaled a willingness to uphold executive overreach and validate policies that subvert democratic principles. With more conservative justices, the court might continue to dismantle protections for voting rights, reproductive health, queer folks, immigrants, your family, your individual privacy. This could reflect and reinforce authoritarian tendencies. The potential rollback of civil liberties and the legitimization of discriminatory policies could deepen societal divisions and marginalize vulnerable groups. Moreover, Trump's past criticisms of judges who ruled against him suggest that judicial independence could be further compromised. A second term might embolden efforts to intimidate and discredit judges, further chipping away at public confidence in the judiciary's impartiality. This could lead to a judiciary more aligned with executive interests, diminishing its role as a check on presidential power. Here's Dr Ginsburg again.

Dr. Ginsburg:

You know, congress is supposed to play a role in ensuring accountability and I don't see that happening. If you know, we get a second Trump presidency. Very few members of Congress. I think there's one Republican member of Congress who voted to impeach, who still left in the House of Representatives, and that means Congress. You know, the Republican members think of themselves as sort of hitched to Donald Trump's star and they're unlikely to provide an independent check.

Dr. Ginsburg:

The courts are supposed to be a check and of course, during the first Trump presidency we saw a lot of effort to really I'll use the term pack the courts, because I think that that's what's going on when you prevent the other side from making appointments and then, you know, push through your own people to certainly ensure that there wasently at the level of the US Supreme Court, which many people in law schools believe has just become, you know, quite a partisan body and the best predictor of its decisions is not no longer law, as we traditionally would know. So that kind of elimination of the institutional checks is very serious. We've observed in other countries and it seems to be well underway here countries, and it seems to be well underway here.

Shawn:

The cumulative effect of these developments could be a judiciary increasingly viewed as an extension of partisan politics, weakening its legitimacy and destabilizing the foundational principles of checks and balances, ultimately itself posing a serious threat to the resilience and health of American democracy. To be honest, we're already pretty far down that road. Earlier in this episode, I talked about the Supreme Court's approval rating, how it plummeted from 58% in 2020 to 40% one year later after it signaled its hostility to abortion rights, and we've discussed here how this drop threatens the court's legitimacy, weakens the court's ability to engender support for and acceptance of its decisions, and also how it makes the court vulnerable to authoritarian exploitation. But something else is going on here that's not immediately evident, but particularly frightening. The court was the one branch of American government that has kept the legitimacy of our democratic institutions above water. According to Gallup, confidence in the presidency hit an all-time low of 23% in 2022, and Congress hit an all-time low of 7% that same year, with the court's dissent below a critical 50% threshold. Courts dissent below a critical 50% threshold. We are living through a period of time where all three democratic branches of government are experiencing a sustained lack of confidence from the populace it governs. In total, we don't trust our government. This is dangerous.

Shawn:

When all three branches of government the executive, legislative and judiciary fail to garner the support of the majority of the people, several detrimental effects on democracy can occur. A trust deficit in an entire government causes citizens to question the authority and decisions of its leaders, which can foster widespread non-compliance and civil disobedience. Social unrest, protest and violent conflicts can surge, which destabilizes society. Government becomes further unresponsive as it struggles to implement legislation and policies effectively to address the issues facing a fractured electorate, leading to more gridlock. Subsequent disillusionment with the political system and government drives people away from civic engagement and toward more extreme positions, parties and people. This fuels populist figures that promise to fix everything and take on the perceived corrupt elite. Support for these populists paves the way for authoritarian leaders to address public grievances, often manufactured and amplified through undemocratic means like mass deportations, shooting first and asking questions later, imprisoning opponents, canceling the Constitution and delegitimizing elections.

Shawn:

So erosion of civil liberties and human rights occurs as the government under the direction of an authoritarian takes steps to assert control. The social contract falters, the economy withers, faith and trust in each other fails and democracy collapses. Everyone loses, except the authoritarian who has exploited the real dissatisfaction, the genuine fear and anxiety and hopelessness, and by the time we figure it out, he's plundered our emotional, civic, social and political wealth, our future, our children's future, but by then it's too late. I'm going to leave you with Stephen Marsh, journalist and author of numerous books, including the Next Civil War and, most recently, the Last Election, co-authored with Andrew Yang, with his thoughts on what this looks like. Check back next week for another episode of After America.

Stephen Marche:

People imagine the future as history right, like they imagine the rise of Hitler or Mussolini or whatever. These historical parallels and analogs are not very accurate. There is a certain range of possibilities, like a civil war according to Prio, starts at 1,000 combatant deaths a year. Civil disturbance starts at 25 deaths a year. So America's already been in that state for a long time. There are certainly more than 50 political murders a year in the United States, and that's not just politicians, that's mass murders of immigrants and so on. The range goes from the troubles in Northern Ireland to the conflict in Syria.

Stephen Marche:

But the question of authoritarianism and chaos are actually like you say that you kind of present those as two separate options, but they're actually the same. Because what happens is that in all of these scenarios, when you have the civil unrest, to create the space for politics, you need to suspend civil liberties. This was the idea behind the surge in Iraq and also behind certain actions in Afghanistan that if you created militarily the space for elections, you would resolve political problems by politics and therefore get yourself out of chaos. The problem is that any attempt to impose that order creates more chaos. Right, that's why nobody has really won a war against insurgents because to clamp down on the insurgency you then create riper conditions for the insurgency generals and Americans who have led, you know, anti-terrorist campaigns. They really think the only way to start to win one of these wars is not to fight, right, like that's been the lesson of American military involvement for 70 years now.

Stephen Marche:

I would not want to be the one trying to impose order on the American populace like that does not. They do not seem like attractable people who are obedient to orders. So the worry is that you'll have both chaos and authoritarianism, right. You'll have an attempt to hold order that will create more disorder and then will produce a complex cascading system. So the problem is that we're already kind of in that space, like we're already in the middle of semi-legitimate elections. Like there are people who consider the January 6th riders and not a small number of people who consider the January 6th people political prisoners. It is not impossible at all, if Donald Trump were elected, that they would simply all be forgiven and they would simply all be pardoned and sent back into the world, and that creates conditions where they are essentially his fighting force, right? You know, I guess the chaos and authoritarianism, they're kind of flip sides of the same coin, and that coin is already being tossed in the air. Thanks for watching.

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Shawn C. Fettig

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