The Role of the Courts in Protecting Democracy

They can only do so by shoring up the legitimacy of the system

The Hughes Court, 1937, shortly before the “switch in time that saved nine”

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Last week, Maine became the second state to bar Donald Trump from the ballot for having engaged in insurrection, and hence being ineligible for the office under Section 3 of the Fourteenth Amendment. The decision was made by Maine’s Secretary of State, Shenna Bellows, but she was acting in a quasi-judicial capacity per the peculiar laws of the state. Colorado’s Supreme Court made a similar determination in December. I have no doubt that both Bellows and the majority on the Colorado Supreme Court understood themselves to be defending democracy, both because they were keeping off the ballot someone who had tried to overturn a legitimate election and, equally importantly, because they were simply applying the law as they understood it, and the neutral application of the law without regard to person is at the core of democracy. Needless to say, the GOP and the Trump campaign have vociferously denounced the decisions as an attempt to rig the election and, therefore, a manifest betrayal of democracy.

Then, this past weekend, the Israeli Supreme Court struck down a law aimed to curb that court’s powers by forbidding it from blocking government decisions on the grounds that they are “unreasonable.” When the law was originally passed, it sparked the largest and most sustained protests in Israel’s history, with half the country declaring that the attack on the courts was a fundamental betrayal of democracy. The court’s response was also precedent setting; never before had Israel’s Supreme Court struck down legislation that was part of Israel’s quasi-constitutional “Basic Law.” Needless to say, the opposition has praised the decision for saving democracy, while the government has denounced it as a manifest betrayal of democracy and a judicial coup.

Is there any basis for distinguishing between these claims? Or is this just proof that democracy is whatever you want it to be, and that courts are inevitably partisan whenever they are forced to tackle political questions?

All small-d democrats have to believe that the answer to the former question is “yes” and that the answer to the latter question is “no.” I count myself a small-d democrat, so I’m going to endeavor to substantiate those answers here. But first, I have to go back to first principles.

What do we mean when we talk about “democracy?” The word means “rule by the people” but what does that imply? Do the people rule directly or indirectly? Can they act by simple majority, or require a supermajority—or can they act only by consensus? What are the limits, if any, to the concept of “ruling” and who enforces those limits? And who are the people anyway? These questions are not abstract ones; they are implicated directly in every system that we call democratic.

My view is that democracy is, first and foremost, a basis for political legitimacy. All systems of government rely implicitly on the consent of the governed since, without at least tacit consent, government is practically impossible; the people necessarily outnumber their rulers and the rulers are ultimately dependent on them for the necessities of life. But advocates for democracy claim that a system of government that earns the explicit support of the people governed by it will be more legitimate than other systems of government that rely on tradition, proprietary ownership of the state, clerical approbation, or brute force for legitimation.

I agree with that claim, which is why I’m a small-d democrat. But I want to be clear about what the claim entails and doesn’t entail. I think it does entail what you might call a democratic culture, one in which citizens feel entitled to have and air their opinions on the issues of the day, and where contestants for power respect the process even when they lose. It doesn’t imply, though, that the government must follow public opinion or express the people’s “will,” whatever that might be. A government elected by the people, but acting in ways that are unpopular, is still acting in a perfectly democratic fashion, in my view, provided that it remains accountable to the people.

Democracy doesn’t imply pure majoritarianism either. You can have supermajority requirements or consensus requirements for at least some decisions in a democracy, or not; you can have checks and balances of various kinds, or you can dispense with them; you can have a federal system, or a unitary national system. These variations may reflect differing conceptions of who the people are as well as different notions of how effective the people want the government to be. But there’s nothing inherently undemocratic about, for example, giving one federal subdivision special rights that others are denied (as Canada provides for Quebec), or about requiring a substantial supermajority to change the constitution (as America’s amendment process notoriously requires).

Nothing inherently undemocratic—but these kinds of things could become undemocratic if, as a result, the government grows less and less accountable to the people, and the people start to notice and object. If that process of disillusionment progresses far enough, even a formal democracy that ought to benefit from the explicit consent of the governed might start to lose the tacit consent that even undemocratic regimes depend on for legitimacy. And if that happens, and the political system refuses to recognize the need for structural reform to bring things into line with the people’s current views on who constitute the people, how effective they want their government to be, and so forth, then political violence, civil war or revolution become real possibilities, even against a formal “democracy.”

What, in light of the above, is the proper role of the courts in protecting democracy, and preventing that downward spiral? In general, courts are backward-looking institutions rather than forward-looking ones. They apply rules based on precedent, and decide cases rather than making law. Moreover, they are supposed to do those things without regard to who is a party to the case or what popular opinion might be. Their legitimacy depends on that backward-looking nature and that disregard for public opinion; indeed, central to the courts’ function is to stand against a transient majority when it asks them to set aside the law. And inasmuch as democracy ceases to be anything but mob rule without law, democracy itself depends on the courts’ fundamental insulation from democratic accountability.

But that’s not the end of the story. Courts also have to recognize when the legitimacy of the system of a whole is at stake, and whether their actions will be interpreted as upholding or undermining that system’s legitimacy. When the elected branches are acting to undermine that legitimacy, courts—if they retain the public’s respect—are in a unique position to shore it up by rebuking the elected branches. But by the same token, when the courts’ actions are themselves undermining that legitimacy, they have an obligation to step back from their normal backward-looking, precedent-respecting process, and consider the future—and change course.

The famous “switch in time that saved nine” is probably the most famous example of the latter phenomenon in American jurisprudential history. The phrase is probably literally inaccurate; the Roosevelt administration probably didn’t cow key swing vote on the Supreme Court into changing his views by threatening to add additional justices until they got a majority that would vote the government’s way. For one thing, the packing scheme wasn’t announced until after West Coast Hotel Co. v. Parrish was already decided; as well, that scheme was deeply unpopular, and so likely never would have been passed by Congress. But the Supreme Court did rethink a host of matters related to economic regulation in the 1930s, jettisoning much of its prior doctrine on unenumerated economic rights and dramatically broadening the scope of the commerce clause. It’s very hard not to see that shift as a response by the Court to the election results of 1932 and 1936, a recognition that the people demanded what amounted to constitutional change and that, if the Court did not provide it, the people would find other, more radical means to achieve that change.

As for the former phenomenon—the Court successfully rebuking the elected branches for failing to protect democracy—I think the best example is the series of desegregation decisions exemplified by Brown v. Board of Education, but which began decades earlier and which continued beyond Brown. Legal segregation was accepted by the Supreme Court in Plessy v. Ferguson, but sustained by a vocal, intransigent local majority that had, over the course of decades, essentially stifled democracy at the state level, and prevented a national majority from interfering with segregation. The Court implicitly recognized this persistent democratic deficit, and its response was, with increasing firmness over time, to force the hand of the federal government, which would have to choose between defying the segregationists or defying the Court. It could not have achieved the Civil Rights revolution on its own; that required action by the elected branches which, if it had not been forthcoming, would have left the Court’s own legitimacy seriously undermined as their directives went unenforced. Nonetheless, it played a crucial role in pushing the elected branches to act. (I do not intend to slight the civil rights movement in any way in framing the question this way; that movement operated through the courts, and also engaged in civil disobedience, and also organized mass demonstrations, and also engaged in lobbying of elected officials, and also mobilized people to register to vote and to win elections, and all of those forms of action were necessary.)

What about Dobbs v. Jackson Women’s Health Organization? I don’t like the result in that decision at all, and, separately, I also don’t like how the decision was written. As I’ve also argued, I don’t think it’s going to lead to any kind of stable federalist solution to the abortion question. Notwithstanding all of that, I think a persuasive case can be made that Dobbs was a victory for democracy because, as Justice Amy Coney Barrett pointed out, the persistent political agitation against Roe v. Wade—the fact that laws challenging it kept being passed over and over in multiple states—was proof that Roe was not settled law in the eyes of the people, and the Court had to respond to that reality. It would have been much better if it had done so in a more measured way, one less obviously dependent on a change in personnel and less derogatory toward prior majorities on the Court; Justice Alito’s stridency did real harm to the Court’s own legitimacy. But the legitimacy of the political system as a whole may well have been enhanced by the result anyway.

Where does the Colorado decision on Trump’s eligibility fall according to this analysis? To my mind, it is obvious that throwing Trump off the ballot on the grounds that he is guilty of insurrection threatens, rather than protecting, the legitimacy of the election, and therefore of the system as a whole. I laid out my own rationale for that view immediately after the decision, which is that the Senate was the highest court to rule on the question. But I readily concede that the deeper reason is that barring Trump would simply not be accepted as legitimate and, as the song says, every action has an equal opposite reaction—and the end of an escalating sequence of actions and reactions is ugly in the extreme.

In a recent post, my friend and colleague Damon Linker quoted a scenario I laid out for a possible chain reaction starting with Trump being removed from some primary ballots and ending with Trump still being becoming president but with democratic legitimacy in tatters. But you don’t have to follow the whole sequence to see the problem. What happens if Georgia decides to remove Biden from the ballot for the “insurrection” of failing to defend the border? Or if the Wisconsin legislature declares itself independent and supreme in electoral matters and voids Biden electors on that basis? I think those would be even more extreme escalations than Colorado’s or Maine’s action, and obviously they could happen even if those states hadn’t acted first. But the essential nature of an escalatory cycle is that each turn makes the next turn more likely. That’s why you have to break the cycle.

Which is what the Supreme Court has the opportunity to do. Could they justify saying that each state has the right to decide for itself whether Trump is eligible under the Fourteenth Amendment? Sure they could—the Colorado decision isn’t gibberish; they could uphold it without sounding like lunatics. But they shouldn’t. Indeed, they should strike it down unanimously, and have one of the liberal justices write the decision, so that it is perceived by the largest possible slice of the electorate as the Court, speaking as one, in defense of democracy.

My surely unrealistic hope is that the Court, having inserted itself to protect the integrity of the process of democratic accountability, would ask itself where in its recent jurisprudence it has failed to do just that. The most dramatic such example involves state-level legislative majorities engaged in egregious gerrymandering that makes it practically impossible for incumbent majorities to lose. The Wisconsin Supreme Court is currently battling that state’s legislature over one of the worst such gerrymanders, and, as with Dobbs, because the battle follows a change in judicial personnel and a reversal of the prior majority’s views, it’s going to be greeted with fury by the losing side. But substantively, the Wisconsin Supreme Court is doing the absolute right thing, and the country would be much better off if the United States Supreme Court were to revisit its jurisprudence on the subject of gerrymandering and recognize that, as with Brown, it needs to force the elected branches’ hands to protect democracy, not stand aloof and allow local majorities to stifle it.

Similarly, it’s essential that the Court rip the guts out of the so-called “independent state legislature” doctrine that a variety of enterprising right-wing lawyers have propounded, which alleges that state legislatures have absolute supremacy over elections law, even to the point of being able to override the vote of the people if they are unhappy with how the election was conducted (which is to say, if they are sufficiently unhappy with the result to find reasons to be unhappy with how the election was conducted). The doctrine is manifestly undemocratic, and more obviously so in the context of heavily gerrymandered state legislatures, which should make it all the more obvious to the Court why it has to tackle both. It would be particularly fitting if the Court took such opportunities as soon as possible after rebuking Colorado and Maine, and thereby establishing a consistent reputation for defending democratic accountability. That, ultimately, is the most important role for the Court in defending democracy.

Now: what about Israel? Israel has a radically different political system from the United States. It has a national rather than a federal government; it is a parliamentary system with a unicameral legislature elected according to proportional representation, with the government and the head of state both elected by the legislature; and it has no written constitution other than the Basic Law which is passed in fundamentally the same manner as ordinary legislation. It’s also a democracy, but it’s a very different democracy from America’s with a very different history. America’s Supreme Court, though, has had a profound influence on other countries, Israel very much included. The ambition that Israel’s Supreme Court demonstrated in the Aharon Barak years owes an unmistakeable debt to the activism of America’s Supreme Court, notwithstanding the fact that courts in Canada and Europe have often surpassed America’s example in that regard over the past thirty years.

The law that the Israeli Supreme Court just struck down was relatively limited in scope. It forbid the High Court from overturning administrative decisions by the government because they failed a test of “reasonableness,” a standard inherited from English common law. But the law was widely understood as an intentionally provocative first shot in a larger campaign to reshape Israeli democracy along the lines that the current extreme right-wing government would prefer. It was, as I noted at the top of this piece, a very unpopular piece of legislation, passed with no regard for the need for broad consensus in enacting what amount to constitutional changes. The fact that Prime Minister Netanyahu went ahead with it in the face of such massive protest is a profound indictment of his government, of its basic fitness to govern.

So Israel’s Supreme Court can say to itself that it is acting to protect democracy, and mean it. There is every reason to fear that the current government will behave in a corrupt manner if liberated from the check of the High Court, even to the point of threatening basic democratic accountability. The High Court can also tell itself legitimately that the law it struck down is deeply unpopular, and, beyond that, that the current government is flouting the will of the people every day it remains in power.

And yet, the law was passed, and no one is alleging irregularities that would justify setting it aside. I can’t help but feel, therefore, like Israel’s Supreme Court is declaring itself to be above rebuke by the legislature—that it is, in effect, sovereign, and not the people. It doesn’t help that the decision was as narrow as could possibly be: 8 to 7, with two members of the majority on the brink of retirement. True, a much larger majority, 13 to 2, affirmed the High Court’s right to strike down Basic Laws that altered the fundamental Jewish and democratic character of the state; five Justices simply didn’t feel that killing the “reasonableness” standard crossed that threshold. But we’re still talking about a High Court saying that it alone decides what is and isn’t fundamental to the character of the state, what is and isn’t fundamental to democracy. Where does that leave the people? In particular, where does that leave the people when the question of who the people are—all the inhabitants of the land? all the citizens? only the Jewish citizens? only those Jewish citizens who meet some ideological or religious test?—becomes increasingly contested

As a practical matter, I suspect the High Court will win this round. The current government is in no position to escalate a constitutional crisis in the middle of a war. But that just means that the High Court is counting on this government’s collapse after the war, and that the extremists who dominate it will never return to power. They are counting, in other words, on actual democratic accountability retroactively endorsing their move. The only reason for such confidence, though, is the war itself, which has thoroughly discredited this execrable government. It ought to trouble their consciences, therefore, that were it not for Hamas’s atrocities and Israel’s ongoing war in response, it’s entirely possible that their action would have prompted the government to escalate in turn, and defy the High Court outright, regardless of the damage that would have done to Israeli society. And how many divisions does Esther Hayut have?

In other words, if Israelis are inclined to thank the High Court for protecting their democracy, they should instead recognize that all it did was buy them time. They will have to use that time to rebuild a majority that wants to uphold the democratic character of the state. Given the demographic evolution of the population, such a majority almost certainly will require Palestinian Israeli citizens and the party or parties that represent them, if not now then before too long. If they fail to construct such a majority, the probability is all too high that before too long another extremist government will arise with similar goals to the current one, ready to assert its own supremacy over the High Court. And then Israel will discover who is truly sovereign.