Volume 93, Online Symposium
Can national judiciaries play a role in resisting democratic backsliding? This essay explores the role of courts in the context of democratic erosion by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention. Such positive results are not pervasive—Hungary’s and Poland’s experiences, for example, cut in the other direction. But by examining the institutional and political conditions under which national judiciaries have impeded, if not prevented, backsliding, it is possible to gain some insight into how courts can play a role in supporting democratic practice.
President Trump’s repeated and unsparing criticisms of the federal judiciary provide an opportunity to examine how public critique of the U.S. Supreme Court affects Americans’ willingness to support the institution. We report the results of an experiment embedded in a nationally-representative survey of Americans that varied in both the source (President Trump or distinguished law professors) and content (legal or political) of the criticism aimed at the Court. Our results—perhaps surprising to many—demonstrate that the greatest decline in support for the Court came among those respondents who learned of criticism by law professors that the Court’s decisions are politicized. The results have important implications for our understanding of the Court’s legitimacy under President Trump.
In this essay, I argue that a constitutional scheme grounded in the Rule of Law cannot rely primarily on a self-executing, mechanistic vision of Madison’s ambitious branches checking one another. Rather, “We the People” depend on self-regulation—in the form of constitutional good faith—by the vast majority of our constitutional actors. I then offer a meditation on the nature of good faith required for healthy American constitutionalism.
James Gibson and Michael Nelson have written another compelling paper examining how Americans think about the Supreme Court. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply—prepared for a symposium held at the New York University School of Law—questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high—precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.
Response to Aziz Z. Huq, Democratic Erosion and the Courts: Comparative Perspectives, 93 N.Y.U. L. Rev. Online 21 (2018)
Oversight institutions within the executive branch can play an important role in checking executive power. But the independence and efficacy of these institutions depend on unwritten conventions that are now under threat.
Response to Tara Leigh Grove, The Power of "So-Called Judges", 93 N.Y.U. L. Rev. Online 14 (2018).
President Trump’s rhetoric has raised fears that the administration might defy a judicial order or take other steps to subvert the authority and independence of the judiciary. Trump’s rhetoric is, to be sure, worrisome. The authority of the American courts to adhere to the rule of law cannot be taken for granted. In moments of extreme conflict between the courts and elected officials, it might be expected that politicians will seek to curb the power of the courts to obstruct their political and policy goals. American courts can now boast hard-won bipartisan support for their authority. Courts can likely weather the storm in a conflict with the President if the broader range of political elites, including those within the Republican Party, continue to see that a powerful and independent judiciary is in their long-term political interest.