How to Save Democracy, According to Top U.S. Law Professors

Last week, I went to a zoom talk that the Center for American Progress and Court Accountability (CAP) put on. Several top law professors, a philosopher, and a sociologist, talked about how our judiciary system itself can destroy democratic norms and ideals. Norms like public participation in government, and a system of checks and balances.

They call breaking these norms “democratic backsliding.” It’s a nice way of saying an elite ruling class is using the courts to dismantle our choices and give them all to one—in our case, orange—person. An autocrat.

To kick off the 2-hour seminar, Michael Podhorzer, senior fellow at CAP, set the stage:

• 73% of the world is living under an autocracy, or rule by one person with absolute power
  • I looked this up. The number of countries researchers at the University of Gothenburg consider sliding into autocracy increased from 13 in 2012 to 42 ten years later.

Why does this happen?

• 
Aziz Huq, a University of Chicago Law professor, said increasing income inequality is largely to blame in the U.S. Things like automation and overseas labor allowed an oligarchical class to rise up. That class is economically and psychologically distinct, he said (some studies have shown the rich may have lower empathy and compassion), and the court has abetted them, translating that economic hierarchy into a political hierarchy. 
  • 2 examples of the Supreme Court doing that:
    • 1: Campaign finance. In the 2010 Citizens United case, the court ruled that anyone—corporations, wealthy donors—could spend as much as they want on elections. Before 2012, Podhorzer said, there was little outside spending in American presidential elections. In 2024, corporations and wealthy donors—identities oft obscured through non-profits—spent $3.5 billion.
    • 2: Constraining the government’s ability to enforce laws against white collar crime.
      • When you limit our bureaucracy’s ability to enforce laws, you expand presidential power. If you give the president the power to fire bureaucrats (like the Federal Election Commission) at will, they can’t do their jobs enforcing laws.
      • This is anti-regulatory bias dressed up in separation-of-powers doctrine, Harvard Law’s Mark Tushnet said. When you take away our bureaucrat’s powers to regulate, and when you create a distrust of civil service and congress, you weaken our government’s ability to respond and adapt to changes in the world, like when tech corporations find new ways to exploit the American people for profit.

Our Supreme Court, under Roberts, is engaging in “lawfare,” or using a partisan, right-wing judiciary to cancel policies of democratically elected leaders. It’s a takeover of government without a military invasion or coup.

• The “weaponization of judicial influence” in our country began more than 3 decades ago, when the Federalist Society, a conservative organization, was founded at Yale Law School. “It created a pipeline of judges with certain ideologies,” a panelist said. Now 6 of the 9 Supreme Court justices consider themselves members or affiliates of the society, including Trump appointees Kavanaugh, Gorsuch, and Coney Barrett. The society operates at all 204 ABA-accredited law schools in the country.

We are in a new Gilded Age. But in the Gilded Age of the later 1800s, when income inequality also went nuts thanks to industrialization, the rich guys weren’t so openly invited into government. For example, you wouldn’t have found steel magnate Andrew Carnegie in special seating at Lincoln’s inauguration. Or giving a speech there. Or a Nazi salute.

So that’s some of what’s going on, from the lawyer / judicial perspective.

Now what do we do about it?

CAP turned to Princeton sociology and international affairs prof Kim Lane Scheppele, NYU Law’s Margaret Satterthwaite, and Yale philosopher Jason Stanley for ideas.

First, they looked at how other countries operate. Like Brazil, which recently went through a similar situation with, so far, a different outcome.

A Supreme Court may not be necessary.

• Nordic countries and other top democracies have weak to no judicial review.
• The more powerful courts get, the more susceptible they are to capture.
• Powerful courts are a target for autocratic capture because they stand a chance of getting in the autocrat’s way.
• Scheppele said the American Supreme Court is functionally dead.

Brazil’s Supreme Court stopped their country’s autocrat thanks to TRANSPARENCY

• After Bolsonaro staged a 2022 coup not unlike the Jan 6th attacks, Brazil’s Supreme Court disqualified him from running for office for 8 years.
• Brazil’s court regulates social media platforms.
• Brazil’s court has its own TV channel. They use it to broadcast announcements and deliberations. Their debates are completely transparent. This shows the people the court has not been captured.

The U.S. Supreme Court does not want to be seen or held accountable for their opinions or personal actions. It hides behind closed doors.

Some fixes:

1. STRATEGIC LITIGATION TO SHOW THE PEOPLE HOLES IN SUPREME COURT DECISIONS

• Their terrible opinions, Sheppele said, might actually provide a way to salvation.
•  As the court is captured, the justices are also worse at what they do.
•  Lawyers can introduce more litigation that hits on the incoherent parts of their decisions.
•  In bringing up cases that show their incoherence, the court can lose its lauded place in society.
•  Democrats haven’t loudly accused the Supreme Court of capture for fear of undermining judicial power.
• The Court’s only real power is that of public trust, and it’s losing right now. Scheppele said we should generate more distrust in the court. In other systems, asking how the Court works is perfectly normal. Our current court treats all critique as illegitimate. We should stop treating them like they’re fragile, precious babies.
• The court is precarious. Nothing is holding it up but politics.

2. INSIST ON A BINDING ETHICS CODE
The only way to restore judicial independence is to restore transparency, accountability and impartiality, Satterthwaite said. (Honestly not sure how that works at this point.)

3. CHANGE PUBLIC OPINION
People need to know—in a way they understand—about what’s going on in their own court system.

• Highlight judges doing a good job with transparency, accountability, and impartiality. Show people what real judges should do. Articulate what we should expect of our courts.
• Our system’s strength is that it’s pluralistic, meaning there are many sources of authority. Some state courts are fine, Scheppele said, without noting any one in particular. There are pockets of hope throughout our system. We must find them, raise them up, and protect them. See: This Seattle judge who blocked Trump’s ‘blatantly unconstitutional’ executive order that aims to end birthright citizenship.
• Use media to raise attention about the good courts and about the Supreme Court’s failings.
  Support media that is not caving to autocratic pressure. (i.e. not most legacy media at this point 🙁

4. UNIVERSITIES SHOULD MORE VOCIFEROUSLY SUPPORT LIBERAL ARTS
(Personally super stoked on this point, ngl.)

• In every autocratic takeover, there is a concerted attempt to attack universities (and the media), Stanley said.
• University leaders then make a mistake: The realize it’s unpopular to talk about the humanities, but popular to talk about STEM and medical research.
• Instead of defending things like women’s and gender studies, they hide the humanities.
• Stanley says this is abdicating the university’s responsibility to foster civic engagement and uphold free expression. When they do that, they’re giving up democracy.
• There are no liberal arts colleges in authoritarian societies.
• There’s a reason authoritarians rail against the humanities. Universities should highlight that teaching humanities is about defending democratic principles.

5. ALL UNDERGRADS SHOULD GET LAW EDUCATION
One reason autocrats get away with stuff, Scheppele said, is because people don’t know what the courts are doing or how they work. All trained lawyers see what’s going on and understand it’s lawless, but others don’t.

Final notes:

• Stanley noted that law schools tend to have a desire to protect the institution of law, and a reluctance to criticize what’s happening to their institutions.
• He also noted that there are longstanding structural problems that need to be addressed, presumably once we’re democratic…rightsiding? Like a need for publicly funded media. Studies have shown that countries with well-funded public media have healthier democracies, as it tends to have more diverse news coverage and lower levels of extremist news.

And that was the talk.

Feel better now?