In the wake of the Trump presidency, a debate is emerging about the role the judiciary plays in safeguarding American democracy. On the pages of this publication some have argued that American courts did little to save democracy, while others have written in defense of judges who stood up to Trump’s spurious claims about the outcome of the 2020 election. This important debate is not likely to be settled soon, but there is a lot we can learn already from a cross-national look at Trump’s authoritarian populism.
Like his authoritarian-populist counterparts in Hungary, Poland, Turkey, and the Philippines, former President Donald Trump made every effort to undermine democracy during his time in office. However, in stark contrast to those polities, the uniquely strong American judicial system managed to hold the line and, ultimately, fended off Trump’s assault on our institutions. Throughout Trump’s presidency, the courts — institutions understood to be crucial to preventing democratic erosion — were quiet and forceful, even if imperfect, bulwarks against his creeping authoritarianism. The American judiciary helped prevent the autocratization of our political system and, in the process, revealed a level of power and influence not seen in most court systems around the world. In particular, the U.S. judiciary’s role in settling the fabricated post-election dispute over the 2020 presidential election showcases its comparatively unusual institutional strength and widely shared beliefs in the norms of judicial independence and finality.
Before diving into the crux of the matter, we want to highlight that we are not naively declaring a triumph of U.S. democracy. We also realize that, in addition to the courts, many facets of American government and political culture helped democracy prevail such as passionate activists, state-level bureaucracies, a neutral military, and a free press. It appears “democracy has prevailed,” at least for now, but its persistence is far from certain. While the norm of judicial independence and finality is still strong, it is undoubtedly fraying. Continued degradation of these fundamental norms holds truly calamitous consequences for our democracy, and especially for the courts, institutions that authoritarian leaders elsewhere have been shown to capture and repurpose into “agents of democratic erosion.”
Yet, as we begin to look back on the last four years, it is clear to us that a single-minded focus on Trump’s authoritarian impulses misses the impact the norm of judicial independence has had on curbing creeping authoritarianism over the last four years. Clarity about what works in our system is as important to preserving democracy as understanding all of its flaws. Furthermore, the courts’ ability to discharge their duty “without improper influence from external or internal influence” will continue to be crucial in the inevitable litigation surrounding any potential future prosecution of Trump or his associates. When we consider how judiciaries fared in other countries where populist autocrats have managed to concentrate power after winning electoral majorities, the strength of U.S. judicial independence becomes especially clear.
Authoritarian Populism and Judicial Futility
During the last four years many prominent American academics, former government officials, and public intellectuals sounded the alarm of impending democratic breakdown and the rise of authoritarianism in the United States. Given the Jan. 6 attack on the Capitol, we certainly see these warnings as befitting, especially given that first efforts at autocratization are often harbingers of more successful follow-up attempts. Every meaningful indication suggests that even if Trump leaves the political scene, Trumpism will be with us for some time.
However, these gloomy analyses overlook the cornerstone role of the judiciary in the functioning of American democracy. The lack of judicial independence and the pure futility of judicial oversight in countries where populist autocrats have succeeded has been the main institutional frailty that brought about the collapse of these democratic systems. Before we highlight some examples of how easily judicial independence has been undermined by autocrats around the world, let us take a quick detour into basic democratic theory.
There are numerous frameworks for thinking about the dynamics of democracy and authoritarianism, but one straightforward way to conceptualize a democratic polity is to distinguish between two axes of accountability:
- Democratic accountability to the population through a fair and free electoral process (the axis of “vertical” accountability);
- Inter-branch accountability, especially of the elected branches to the courts as a way to limit the executive overreach and protect the rule of law (the axis of “horizontal” accountability).
Since the beginning of the so-called Third Wave of democratization in the 1970s, new democratic regimes in Southern and Eastern Europe, Latin America, and Asia have been reasonably successful in assembling the vertical axis (free elections, universal franchise, fair competition among political parties and candidates, etc). But they usually struggled to build a durable horizontal axis of inter-branch accountability. As a result, the democratically elected and popular leaders of young democracies have been able to morph into quasi-dictators, often cheered on by majorities (or large and unified pluralities) of voters. Judicial resistance to these actions has been largely futile. Instead of being empowered with the lasting norm of judicial independence as in the United States, the courts in countries like Poland, Hungary, Turkey, and the Philippines mostly “folded” against the onslaught of executive populist authoritarianism. Here are a few examples.
In the late 1990s Poland and Hungary were seen as shining beacons of successful democratization in post-communist Eastern Europe. By 2020, led by two decidedly illiberal governments, these two States have rejected the rule of law and are threatening the future of the entire European Union project. Open disregard for judicial independence is at the center of the conflict. In 2018, President Andrzej Duda of Poland openly ignored a Polish Supreme Court ruling by lowering the retirement age of justices from 70 to 65, sending 27 of the 72 judges into retirement. Duda proceeded to appoint their replacements in a secret ceremony. In Hungary, a decade ago, the ruling party changed the process of nominating judges to the Constitutional Court and increased the number of judges from 11 to 15. Constitutional changes that followed prohibited the Constitutional Court from referring to rulings issued before 2012. More recently, Prime Minister Victor Orbán went even further by working to establish an entirely separate administrative court system subordinate to the government and endowed it with the ability to rule on matters as important as the right to protest, electoral laws, taxation, and corruption. Both Polish and Hungarian cases are being challenged in the courts at the EU level, but there is no doubt that judicial independence in both countries has been undermined in a way that would be difficult to imagine in the United States.
In the Philippines, since coming to power in 2016, President Rodrigo Duterte managed to remove the chief justice of the Philippine Supreme Court. Before the end of his term in 2022, he is expected to completely remake the composition of the Court. In fact, observers expect justices to support proposed constitutional changes that could keep Duterte in office until 2030. His loyalists on the Supreme Court have already voted along party lines to support Duterte’s actions like the martial law declaration in the south of the country and even arrests of opposition senators. Trump was a fan of Duterte’s brutal drug war. Yet, however severe the decay of American democratic norms, it is still unimaginable that Chief Justice John Roberts would ever support a Trump effort to arrest Democratic Senator Chuck Schumer.
In Venezuela, President Nicolás Maduro almost succeeded in using a loyal Supreme Court as a political weapon to dissolve the opposition-controlled parliament and delegate the power to the Court. In Turkey, where the judiciary had been under assault for years, President Recep Tayyip Erdoğan made the courts into a baton of authoritarian rule. As a response to the 2016 coup attempt, Erdoğan jailed hundreds of judges and replaced thousands more with inexperienced regime loyalists, thus entirely breaking with even a hint of judicial independence. We will limit ourselves here to only a handful of the most egregious examples, but interested readers can easily find other instances. Perusing through these cases, it is clear that judicial independence in the United States is one of the many reasons why it is inappropriate to group the country with these cases of successful autocratization, at least for now.
Judicial Resilience and Norms in the United States
By comparison, American courts have demonstrated considerable resilience, having served as a crucial check on the Trump administration. They have upheld challenges to the administration on environmental regulations, protected DREAMers from deportations, and preserved Obamacare (at least for now), among numerous other examples. It is also true that conservative judges on the Supreme Court and lower courts issued judgements along familiar ideological fault lines, including voting rights, abortion, and executive discretion over certain foreign policy matters, but this phenomenon was in place long before 2016. In contrast, the American courts remained fiercely independent from Trump-the-populist. No better example is the way in which the courts resisted Trump’s attempt to overturn the 2020 presidential election.
Built over the course of American history, judicial independence — defined as freedom “from potential domination by other branches of government” — enabled U.S. courts to serve as a check on Trump’s efforts to overturn the election. While much of the pre-election narrative has focused on the vertical-electoral dimensions of democracy as a way to defeat Trump, the horizontal axis of inter-branch accountability played a crucial role in this defeat after Nov. 3. Over 60 electoral lawsuits stymied the Trump administration’s litigation efforts, a losing pattern that fits into Trump’s broader record before the Supreme Court — the worst of any modern president.
Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.
Despite the partisan polarization that has surrounded the Supreme Court, especially this election year, judges – many among them Republican appointees – rejected Trump’s efforts. The reason is straightforward. Despite our tendency to talk about them as such, judicial actors in the United States are not simply partisan and policy actors. They do not derive their legitimacy and authority from party or leader loyalty. Less recognized is the fact that judges have their own institutionally derived “duty,” fostered by vibrant judicial independence. This duty helps explain why judicial review can often reflect “legal sensibility” rather than partisan ideology, leading many Republican judges to rebuff the Trump administration’s and its allies’ frivolous and specious electoral litigation efforts.
That American courts were able to check Trump’s electoral challenges is a testament to the power of judicial independence and review in the United States – a power built not “suddenly and spontaneously” but “consistently and continuously” through “strategic and deliberate action” by judges and with help from legislatures that imbue courts with authority. Indeed, a comparative study of courts in federal systems around the world, identified the United States as having a far stronger form of judicial review (the court’s ability to declare unconstitutionality as “final until the constitution is amended or the court overrules itself”) than in many industrialized countries around the world including Canada, Spain, Belgium, and Australia. Beyond judicial review, the U.S. Supreme Court, in particular, possesses procedural and institutional features that make it more powerful than most courts around the world. Lifetime tenure and the ability of individuals (not just legislatures or lower courts) to bring cases before the tribunal set the Supreme Court apart from high courts in many European democracies.
Nevertheless, this extraordinary judicial power takes root and grows (or degrades) within the strictures of a political system. Never is it simply “bequeathed or inherited.” In other words, political actors and elected officials have constructed and built the power behind these norms of judicial independence and finality because they often see it in their political self-interest to do so. A key insight from the academic literature is that judiciaries are powerful to the extent that politicians want to support the judiciary. So, while the courts checked Trump’s impulses during his tenure and resisted the electoral challenges in the aftermath of this election, their ability to help perpetuate democratic traditions and institutions relies in large part on elected officials continuing to see the courts as useful political allies. It is hardly a foregone conclusion that courts can continue to protect democracy if faith in them is eroded and if the Senate continuously treats judicial nominations as political battlegrounds for short-term partisan gain, obstructing the appointment process and refusing confirmation.
Whither American Democracy without a President Trump?
Given the dangerous and blind-to-the-truth votes by over 100 Republican lawmakers on Jan. 6, and the violent insurrection at the Capitol before those votes were cast, American democracy remains vulnerable. Alarmism is appropriate under these extreme conditions. But insofar as such alarmist pronouncements are “overly fixated” on Trump, they largely miss the ways in which courts can serve as an antidote to the symptom of democratic decay Trump and Trumpism represents.
Of course, American courts do not always protect against democratic decay. Sometimes they facilitate it. Indeed, they continue to play a pivotal role in restricting the right to vote, which in a closer election, might have flipped the election for Trump. We also cannot know whether a closer electoral result in November would have led to a repeat of the Bush v. Gore debacle, when the Supreme Court effectively decided the election along partisan lines. Certainly, other features of a robust democracy like a vibrant independent press, an active civil society, and strong federal division of power have produced checks on the authoritarian ambitions of Trump and any future analog.
But the American rule of law, that is the capacity of the judicial branch to prevent the most powerful person in the country from always getting his way, is enduring. Although some analyses rightly see these post-election cases as easy ones to dismiss legally, we should also consider the fraught and violent social context in which these judges were handing down their judgements. We know of electronic voting machine employees hiding for their lives, state election officials being threatened across the country, and long before this election, in 2017, a federal judge received online threats for his restraining order halting Trump’s travel ban. So even though courts’ pre-election cases helped stack the deck for Republicans, courts’ post-election litigation nevertheless demonstrated a crucial component of American courts: as institutions structured to resolve disputes, their legitimacy “rests on respect for the quality of their judgements”–maintaining “craft integrity” matters. The source of their legitimacy is a broadly shared perception of impartiality. These norms aided the courts in making just and democratic decisions in the face of the violence and intimidation. Yet the courts’ ability to protect democracy depends on whether a resounding majority believes in and supports an independent judiciary.
Image: Supporters of US President Donald Trump participate in the Million MAGA March to protest the outcome of the 2020 presidential election, in front of the US Supreme Court on December 12, 2020 in Washington, DC. Photo by OLIVIER DOULIERY/AFP via Getty Images