In the wake of the Kavanaugh nomination, a debate has erupted on the broadly progressive left about the role of constitutional courts in advancing valuable social ends. Samuel Moyn’s broadside against the “juristocracy,” and Andrew Seal’s response here reflect two potential positions. That debate has been so far focused on the relationship between constitutional courts and progressive policy ends. But we think there is a more profound question that merits consideration alongside this debate: are constitutional courts a boon or a threat to the project of maintaining a democracy?
In a new book, How to Save a Constitutional Democracy, we analyze the ways in which democracy has come under pressure in the past decade and a half. Courts have played a distinctive role in that process, but the relationship between judicial power and democratic backsliding is complex and contextual. It is a mistake to assume that there is some simple relationship, either positive or negative, between the two. Indeed, too much of the debate focuses on the famous counter-majoritarian difficulty, and the legitimacy of judicial review in general. This debate is too abstract to do much work in practice.
By way of context, it is important to say something first about the particular manner in which democratic failure now happens. Since the early 2000s, the globe has experienced a tangible downturn in democracy’s fortunes. Starting in Latin America, and then moving to Turkey, Eastern Europe, and Asia, populist leaders and parties have seized power by campaigning on anti-elite and anti-globalization agendas. Upon securing power through the ballot box, these leaders have then pursued an antidemocratic agenda more or less in lockstep with one another. To that end they have exploited legal and constitutional instruments against democracy. They have, in other words, weaponized the rule of law as a means of hollowing out democracy. This means that courts are often on the front line of democratic erosion — but they are also key sites for its defense.
Judiciaries can play a number of different roles in this process. A first possibility is that courts will serve as defenders of democratic competition. Colombia and South Africa provide examples of this dynamic.
The Colombian Constitution of 1991 had been carefully designed around a single-term presidency to ensure rotation across a range of government offices. First elected in 2002, President Alvaro Uribe proved wildly popular in his country, in large part for his successful prosecution of the long-running civil war. But Uribe also saw the single term limit as an impediment to his own ambitions. His first effort, in 2004, at abolishing the one-term limit was successful. In 2012, however, his second effort at extending his term was parried by Colombia’s Constitutional Court. Even though four out of its nine members had been appointed by Uribe, the Court rejected the proposed referendum on procedural grounds, cautioning that it would mark an unconstitutional replacement of the constitutional scheme as a whole. A second extension of the presidential term, the Court reasoned, would effectively be a “substitution” of the Constitution since it would allow the President to “name members of the central bank, the attorney general, the ombudsman, the chief prosecutor, and many members of the Constitutional Court.” The Court also expressed concern about media dominance by a three-term president. In other words, the Court found that a third term would mark a threat to Colombia’s democracy. Its decision, moreover, stuck: Uribe respected the Court’s ruling and left office after his second term.
A second example of the judicial defense of democracy comes from South Africa, where the Constitutional Court faced a series of challenges arising from President Jacob Zuma’s efforts to remain in office despite allegations of misconduct. The Court insisted that Zuma had to take responsibilities for his unlawful use of public money and rejected his efforts to stymie accountability by appointing a crony as the nation’s leading prosecutor. Further, the court required parliament to hear opposition motions and to identify a mechanism for removing the president. Informed commentators underscore the important role that the Constitutional Court’s decisions played in the lead-up to Zuma’s fall, which came in February 2018 on the heels of his party’s defeat in local elections in Port Elizabeth, Johannesburg, and Pretoria.
Simply because constitutional courts can check democratic backsliding, however, doesn’t mean that they will do so. Indeed, in many recent cases of democratic backsliding the judiciary has been an early and aggressive target for dismemberment. In Hungary and Poland, for example, populist coalitions have used constitutional and statutory changes to purge the judiciary of unaligned judges. In both cases, this was in part achieved by the simple expedient of lowering the mandatory retirement age for judges. In Turkey, the Erdogan government used civil service rules to purge the judiciary, a process that accelerated after a 2016 coup attempt. Judiciaries are vulnerable to this sort of countermeasure simply because they tend to be more reactive, and hence less agile, than directly elected branches. Hence, they are more open to preemptive strikes of the sort seen in Poland and Hungary.
The U.S. presents a distinct, and perhaps more troubling, case. Under Article III of the Constitution, the federal judiciary is independent only insofar as there are constraints on the removal of judges and the reduction of their salaries. At the same time, the constitution expressly politicizes the appointment process by placing it in the hands of the presidency and the Senate. At the time of the Founding, this was not perceived to present a risk of politicization. Writing in Federalist 78, Alexander Hamilton suggested that there would be but “few men in the society who have sufficient skill in the laws to qualify them for the station of judges.” Indeed, the use of an expressly political selection process has, as a historical matter, often led to a judiciary that contains many different partisan affiliations. But notwithstanding Chief Justice Roberts’ comforting words, it is also quite possible to have courts closely aligned with a particular partisan position. For example, the last time the U.S. Supreme Court had a majority of justices appointed by Democratic presidents was May 15, 1969 — the day Abe Fortas resigned. While this is not necessarily on its own a cause for concern, the dramatic increase in political polarization in the last two decades means that the federal judiciary has also become increasingly politicized.
What is needed in such an era is for judges of all persuasions to pay attention to the systemic risks that can undermine democracy. Courts should focus on the systematic structures of democracy and the profound risks to them that can arise from myriad sources. These include efforts either party to limit political participation and to draw district lines for their own benefit. Suppression of fundamental rights to organize, to speak and to criticize have been effective in limiting political participation in other countries, as has the partisan capture of bureaucratic machinery and the subsequent bypassing of checks and balances. Courts, in other words, should make the defense of democracy a priority in an era when it is under threat both at home and abroad.
Tom Ginsburg is Leo Spitz Professor of International Law at the University of Chicago and a Research Fellow at the American Bar Foundation. @tomginsburg
Aziz Huq is Frank and Bernice J. Greenberg Professor of Law @aziz_huq.