Abstract
Autocratic regimes, now governing 70 percent of the world’s population, often come into power by democratic means but then use their authority to undermine the very institutions that sustain democracies, including representation and participation in elections, protection of minority rights, the rule of law, and checks and balances. This erosion of structural guardrails is known as democratic backsliding.
The parallels between what autocratic regimes do to cause democratic backsliding in their realms and what the contemporary U.S. Supreme Court has done in its realm are eerie. Like many autocrats, the current Court’s supermajority owes its existence to a nominally constitutional, but politically manipulated, process. Also like many autocrats, the Court has proceeded to use legalistic-sounding methods and its considerable institutional prerogatives to increase its own autonomy and power.
Indeed, on close inspection, the Court is shown to have behaved in many ways seemingly torn from the autocrats’ playbook: degrading the rules governing elections, aggrandizing itself at the expense of the other branches, subverting protection of minority rights, tolerating if not encouraging corruption, and sowing chaos. The Court has thus engaged in a level of judicial usurpation that we call autocratic judging.
Only by exploring how this could have happened to our Court will there be any hope of stemming the rise of this creeping threat to the constitutional order. Our study suggests two possible causes: the lack of external checks by the U.S. Congress and the absence of the type of internal constraint that arises when there is a true center or median Justice. That consequential absence is likely to persist in the near term, which leaves all hope of improvement with Congress.
