In the winter of 2017, I hosted a Venezuelan family at my home for dinner. The parents were visiting the United States to see their son, who had been an opposition mayor in Venezuela. A year earlier, he had been forced to flee the country as its democracy disintegrated bit by bit. He could not return. They sat at my table, bewildered by what had happened to their lives in just a few years. They had come of age in a rich, strong democracy whose institutions had been modeled on those of the United States. Now their family was scattered and anxious: Their son was in the United States, and they might not get to see him again; they were worried that they would be detained when they flew back to Venezuela; their daughter was in college studying journalism, but would not be able to do much if she remained in Venezuela, where the media existed but its freedom to report on things that mattered had been destroyed.

As we talked, they pondered when their country had crossed the Rubicon? At what point could it still have been saved?

Democracies have been falling all over the world in recent years. The decline has largely occurred at the hands of elected leaders who use their popularity to ride roughshod over their countries’ institutions, destroying oversight by a thousand cuts. As I wrote in my personal capacity with five co-authors recently in an amicus brief for the U.S. Supreme Court, countries that maintained their democracies have had courts that rose to the occasion to safeguard a country’s constitution or rule of law. The United States rarely considers international experience in the course of its democratic decisions. But with a former president facing four state and federal cases and a Supreme Court being asked to determine multiple issues of constitutional law, the United States is facing situations that are much more common in other democracies. In countries with living memory of a time without their democracy, the courts are actively erecting guardrails to prevent such loss from occurring again. 

International Cases of Courts Upholding Democracy

Consider Brazil, where events of the past few years have looked quite similar to those in the United States. In 2022, then-President Jair Bolsonaro spent months claiming that his upcoming election in October of that year would be marred by rigging. When he lost, he refused to concede. His supporters protested for weeks, and finally, on Jan. 8, 2023, tens of thousands of them ransacked Brazil’s Congress, the Presidential Palace, and the Supreme Court. 

But there, the analogy with the United States ends. Many Brazilians remembered the 1964 coup that had dismembered their country’s democracy. Freedom of speech and other core rights had only been restored in 1985, well within the living memories of their public and of many officials in their court system. Brazil’s Supreme Court began investigating Bolsonaro’s undermining of democratic institutions and defamatory attacks. The courts had never before unilaterally started investigations – but the Brazilian high court took on that power during Bolsonaro’s case, just as the U.S. Supreme Court had taken on new powers (in their case, the power of constitutional review) in the 1803 case, Marbury v. Madison

Bolsonaro supporters threatened the justices and their families. Explosives were found near one justice’s home. But the courts held steady. Based on the laws Brazil had in place to safeguard its democracy, the Supreme Court barred Bolsonaro from running for future office for eight years. Thanks to the courts’ choice to act, Brazil’s democracy steadied itself

Mexico’s courts are similarly acting to preserve that country’s democratic system in the face of a populist leader with authoritarian tendencies. Andrés Manuel López Obrador (known as AMLO) has been a wildly popular president. He has used his popularity to undermine the country’s institutions – slashing the budgets of autonomous semi-governmental bodies that act as watchdogs and using daily press conferences to attack independent public agencies and journalists. In 2022, he targeted the country’s election system with a budget cut, justifying it as a fiscal austerity measure. He also attempted a constitutional change that, together with the budget cut, would have eliminated as many as 85 percent of the personnel in the national election body. 

AMLO did not have the two-thirds majority needed in Mexico’s Congress to amend the Constitution, but his party held a majority and passed a slighter version of the legislation that still would have severely compromised the National Electoral Institute, the country’s competent, independent election oversight body. The Supreme Court heard a challenge to the legislation – and after intense debate, declared the reforms unconstitutional. While not unanimous, a number of judges appointed by AMLO decided against the legislation.

Colombia’s courts trod this road more than two decades ago. Then-President Alvaro Uribe similarly took office with massive popularity – and in his first year, tried to centralize power through a referendum. Uribe was the first president to effectively counter the insurgency that had plagued Colombia for decades (though he did so with brutal tactics that resulted in immense human rights violations). So his attempt to centralize power was polarizing, but also had strong popular support from a large portion of the country. And it had a precedent: a similarly popular power grab had been used less than a decade earlier in Peru so that its president, Alberto Fujimori, could fight the Sendero Luminoso terrorist group. 

Despite Uribe’s popularity, though, Colombia’s courts chose to uphold the law. They overturned the referendum attempt. They recognized that even with a real national security threat, Uribe’s authoritarian tendencies – such as his use of the intelligence agency to investigate his opponents – undermined democracy. In 2010, the Constitutional Court declared Uribe’s attempted referendum for a third term to be unconstitutional, and he left office after eight years in power. Furthermore, in 28 different cases, the courts convicted his former chief of intelligence and other senior staff, finally ending the threat to Colombia’s democracy. 

Argentina’s courts had similarly stood up years earlier. As Argentina struggled to right itself following the end of its military dictatorship in 1983, the courts took upon themselves the role of reasserting the rule of law. In 1985, the military juntas were put on trial, but the junta leaders had not directly ordered the murders, rapes, disappearances, and other crimes committed under the dictatorship. The court, however, was convinced by the systemic nature of the patterns of violence that the junta leaders had “developed and implemented a criminal plan.” They sentenced multiple leaders to prison –only to have the sentences overturned a few years later by presidential pardon, while the legislature enacted new laws to limit responsibility. The Supreme Court declared these impediments unconstitutional, enabling federal courts to determine – in a first of its kind decision – that they had the power to overturn the pardons. The judges of the original trial of the juntas were so concerned that politicians would attempt to alter the country’s history that they personally carried videotapes of the trial to Norway, depositing them with that country’s government. 

Latin American courts, which have seen how democracy has been undermined by elected leaders on their continent, have been guardians of their constitutions and their democracies. But they are not alone. In Israel, on Jan. 1 this year, the Supreme Court rejected the first part of a judicial overhaul package that would have diminished the oversight powers of the judiciary – a particular threat to democracy in a country with no constitution and where the executive in the form of the prime minister is an extension of the legislative majority rather than the legislature being a separate check on executive overreach. In Italy, South Korea, and other countries, courts have been similarly essential to returning faltering democracies to steadier democratic ground. 

The Role of the Courts in Democracies Under Pressure

Now, America’s courts are being asked to decide a series of cases related to former President Donald Trump that they likely wish had never arisen. Some justices may feel that a functioning democracy requires questions of import to be determined by elected representatives – even if the precise legal question at hand is simply one of whether a trial should be speedy. In well-functioning democracies, courts can rely on parties to act as gatekeepers that prevent anti-democratic leaders from gaining power. Indeed, such party gatekeeping is what saved those European democracies that survived the gutting of democracy during the interwar years. 

In functioning presidential systems, legislators and watchdog agencies even within the executive branch guard their authority to serve as checks on executive power, as occurred with President Richard Nixon’s impeachment after Watergate, or as evidenced by past congressional refusals to cede their powers to the executive branch on issues such as war making and other congressional prerogatives. But in democracies under pressure, these institutions falter. In my research on countries that elected populist authoritarian leaders, legislatures consistently failed to exercise their constitutional authority to check extralegal actions. The only country where a legislature acted to remove a leader from power after anti-democratic actions was South Korea – and there, they were finally roused to act only after the president’s approval had dropped below 5 percent and a more emotional scandal gained the public attention in a way that the president’s misuse of governmental agencies had not. 

Legislatures often have the constitutional power to be the frontline forces of democracy’s defense, but research shows that once democracies have begun splitting into opposing camps or facing institutional decline, the legislatures – which by then usually reflect and/or embody those divides — fail to push back against executive overreach or to repair problems left behind once the executive leaves office. As in today’s United States, elected representatives in other countries’ legislative branches were too polarized, individually powerless, or venal to put democracy itself ahead of their party or personal careers, and so their institutions abdicated their role as democratic checks. 

That leaves the courts. But the existence of a strong, independent judiciary is not enough in itself. If courts do not act to uphold democracy when it is under threat, their independence is among the first things to go – and after that, the rest becomes easier. In India, where a respected and independent court once presided, the judiciary’s refusal to safeguard the Constitution has allowed massive democratic erosion and has undermined judicial independence. Previously the world’s largest democracy, India was downgraded by Freedom House in 2020 to only “partly free.” A similar fate befell Bolivia, whose judges have now been used to prosecute political enemies, and Venezuela, whose court did not stand up to the wildly popular Hugo Chavez and is now ranked as “not free.” In Hungary, one of Viktor Orbán’s early moves was to place the courts under the control of a loyalist, after which he could degrade the rest of Hungary’s democracy without pushback. In countries where courts have failed to act as an equal, independent branch and have been overly deferential to executives and legislatures, democracies have slipped away.

Understanding that Democracy Can Disappear

America, ironically, is hampered by its long history as a strong democracy. Few people within its institutions believe that those institutions could buckle, and the idea that U.S. democracy would falter is foreign. But no system of government lasts forever. By 1942, after the global democratic backsliding of the interwar period, only 12 democracies remained on the planet. Today, when democracy fades away, it does so with a whimper – elections are still held, parties still contest, a critical press may even still exist for the unimportant percentage of the population who read erudite journals. But the ability of voters to exercise meaningful choice is gone. The United States has been on a fast downward trajectory according to every international measure of democracy. Its elected bodies are not playing their proper roles. Will the courts?