An explosion of recent literature by socio-legal scholars, comparative constitutional lawyers, and political scientists has grappled with the marked decline in both the number and quality of liberal democracies worldwide. Meanwhile, an overlapping set of scholars focused on US democracy, in particular, has endorsed a range of legal and institutional reforms that, not long ago, would have been beyond the pale. In other words, the post-2008 global crisis of democracy has prompted the mainstreaming of previously fringe reforms for improving the quality of democratic governance in the United States or at least slowing its downward spiral. Understanding the emergence of these calls for reform requires attending to ongoing scholarly conversations about the nature of the threat.
In this review essay, I call attention to three competing metaphors for democratic decline (erosion, backsliding, and abuse), and I tease out their implications for how supporters of liberal democracy might best go about arresting and reversing the decline. I then turn to two proposals for legal and institutional reforms that, depending on how one understands the nature of the threat, might be understood either as further indications of (and even contributors to) democratic decline or as “constitutional hardball” in democracy’s defense.
THREE METAPHORS
Democracy is in crisis worldwide. According to V-Dem, the number of liberal democracies dropped from forty-two in 2012 to thirty-four in 2021, with those thirty-four housing just 13 percent of the world’s population. Framed as a moving picture rather than a snapshot, there were thirty-three countries trending in an autocratizing direction in 2021, including Brazil, India, Turkey, and the United States, compared to just fifteen that were democratizing. As a result of these trends, “[t]he level of democracy enjoyed by the average global citizen in 2021 is down to 1989 levels—the last 30 years of democratic advances are now eradicated” (Boese et al. Reference Boese, Alizada, Lundstedt, Morrison, Natsika, Sato, Tai and Lindberg2022, 12, 18).
This phenomenon of democratic decline is widely acknowledged, but its sources and character are in dispute. Consider the range of metaphors that have been deployed to describe the crisis. The two most widely used terms in the existing literature—democratic erosion and backsliding—both convey processes that are largely unintended. Indeed, scholars have criticized both terms on this ground. But some who criticize one term have adopted the other. And others adopt one or both without reference to the critique, even when they are describing processes that do not appear to be unintended.
In a widely noted book published on the heels of Donald Trump’s 2016 election as president of the United States, political scientists Steven Levitsky and Daniel Ziblatt (Reference Levitsky and Ziblatt2018, 3; emphasis added) noted that, while democracies sometimes collapse via sudden coups d’etat, they may also “erode slowly, in barely visible steps.” Comparative constitutional scholars Tom Ginsburg and Aziz Huq (Reference Ginsburg and Huq2018) have likewise drawn attention to the “fast” and “slow” roads to democratic decline. Democracies sometimes succumb to a sharp collapse via authoritarian takeover, but they “can also degrade incrementally without collapsing.” The latter process of “slow decay … is the most common species of democratic recession in the contemporary context” (43; emphasis added). Ginsburg and Huq are clearly deploying multiple metaphors here, but, like Levitsky and Ziblatt, they settle on “democratic erosion” as their preferred term for the “slow form of democratic decay.” They define this erosion as “a process of incremental, but ultimately still substantial, decay in the three basic predicates of democracy—competitive elections, liberal rights to speech and association, and the rule of law” (43; see also Lieberman, Mettler, and Roberts Reference Lieberman, Mettler and Roberts2022b, 7).
“Democratic erosion” has a nice ring to it, and I have used the term myself (Keck Reference Keck2022). But is it a good metaphor for the sort of decline that has afflicted so many democracies in recent years? Erosion, of course, is a geologic concept, and one that clearly connotes an unintended process. Erosion of a coastline may be a direct result of human neglect, but it is usually thought of as a byproduct rather than as an intended outcome. As Wojciech Sadurski (Reference Sadurski2019, 12) has noted with respect to the similar metaphors of “constitutional rot” and “democratic decay,” these terms “connote a degradation that is slow and almost impersonal, occurring without a plan.” For this reason, Stephan Haggard and Robert Kaufman (Reference Haggard and Kaufman2021, 3) argue that “it is important to avoid natural metaphors.” Haggard and Kaufman adopt “backsliding” rather than “erosion” precisely in order to emphasize deliberate, rather than unintended, change, but the two terms often carry a similar connotation.Footnote 1 As Nancy Bermeo (Reference Bermeo2016) notes, backsliding originates as a Christian religious concept, and, for some readers, the term will evoke a convert who lapses into their formerly sinful ways.Footnote 2 For others, it may call to mind a sober alcoholic who has a rough day and takes a drink. In either case, the conjured image is one of failure resulting from some combination of circumstances beyond one’s control and insufficient strength of will.
For those familiar with the self-help or Christian usages, a backsliding democracy, like a renewed period of unhealthy drinking or straying from the path, may reflect a result not intended by anyone. As such, Anna Lührmann and Staffan Lindberg (Reference Lührmann and Lindberg2019, 1099) advance the same complaint about “backsliding” that Haggard and Kaufman advance about “erosion”—that is, that it sounds like “an involuntary, unconscious process, which does not do justice to conscious actions political actors take in order to change a regime.” Sadurski (Reference Sadurski2019, 28) likewise notes that “backsliding” may connote to some readers a process that is “impersonal, purposeless, almost haphazard.” He adopts the term regardless, offering a caveat that this connotation is not his intended meaning. But if the religious metaphor, like the geological metaphor, calls to mind unintended processes, perhaps a better alternative is available, assuming, of course, that the processes we are trying to describe are not always unintended.
One of the key goals of the first wave of post-2016 literature on democratic decline was to establish that democracies can end via slow, almost imperceptible, processes. Both “erosion” and “backsliding” are serviceable terms in this regard. But as the literature has advanced toward a fuller assessment of the range of mechanisms by which the slow form of democratic decline unfolds, the relationship between the evocative terms and the specific mechanisms has remained inchoate.Footnote 3
The existing literature identifies three types of causal forces contributing to democratic decline in the United States and elsewhere: long-term institutional stagnation; unintended harm to democratic norms and institutions, often resulting from elites’ short-term focus on partisan benefit; and intentional harm to democratic norms and institutions. The erosion and backsliding metaphors fit well with the first two of these processes. US democratic institutions are remarkably old, which may carry advantages with respect to stability but may also mean that, absent periodic renewal, they will not be up to the task of fostering a healthy democratic politics in new contexts. For example, the increasing dysfunction of the US Congress in both its policy-making and oversight roles may in part be a result of slow, long-term processes that no one intended (Pierson and Schickler Reference Pierson and Schickler2022). US senators were once fond of describing their institution as the “world’s greatest deliberative body.” Even if the description was always inflated, long-term processes of institutional erosion may have left it less apt than ever.
Likewise, scholarly assessments of the impact of partisan polarization on democratic decline often fit well with the image of backsliding (Levitsky and Ziblatt Reference Levitsky and Ziblatt2018, 145–75; Lieberman, Mettler, and Roberts Reference Lieberman, Mettler and Roberts2022a, 20–22). On these accounts, partisan elites across the political spectrum have taken self-interested actions that, through no one’s fault (or everyone’s fault in equal measure), has produced a byproduct of declining democratic health. Political elites have always sought partisan advantage, but it may be that they once tempered such goals with a broad commitment to the democratic rules of the game, including the norms of mutual toleration and institutional forbearance emphasized by Levitsky and Ziblatt (Reference Levitsky and Ziblatt2018, 102–17). Again, the posited golden age may be exaggerated, but we might nonetheless recognize that partisan elites’ commitment to democratic norms has slipped still further in our current period of democratic decline.
Both “erosion” and “backsliding,” then, evoke images that fit well with important, long-term, unintended forces contributing to democratic decline in the United States. As Sadurski, Lührmann, Lindberg, Haggard, and Kaufman all suggest, however, some key aspects of declining democratic health have been the result of deliberate choices rather than neglect. In Brazil, Hungary, Poland, Russia, Turkey, Venezuela, and the United States, political elites have repeatedly taken actions that deliberately undermine free and fair elections, civil liberties, and the rule of law.Footnote 4 With respect to Poland, Sadurski (Reference Sadurski2019, 12–13) notes that “rot” and “decay” fail to “do justice to the energy, enthusiasm, and designs that PiS [the governing Law and Justice Party] has for Poland.” In the United States, democracy advocates Leah Greenberg and Ezra Levin (Reference Greenberg and Levin2019, 29) emphasize that “[o]ur democracy isn’t just falling apart on its own; it’s being intentionally rigged.” When political elites purposefully undermine key democratic norms and institutions, the phenomenon is not well captured by the two metaphors most commonly deployed in the existing literature, which is why some uses of “erosion” and “backsliding” strike a discordant tone.Footnote 5
In an important recent book, Rosalind Dixon and David Landau (Reference Dixon and Landau2021, 24) have adopted a third metaphor. Defining the phenomenon of interest as constitutional change that has a meaningful negative impact on “the ‘minimum core’ set of rights and institutions necessary for a true constitutional democratic order,” they characterize such actions as “abusive constitutionalism” (see also Landau Reference Landau2013). Their definition is in line with other scholars’ use of “erosion” and “backsliding,” but their label for the phenomenon calls attention to distinctive features of the threat. “Abusive” carries a range of potential referents, but surely its most common use is in the context of domestic abuse, as with an “abusive spouse” or “abusive relationship.” Dixon and Landau do not elaborate this metaphor, and given the context, their phrase may only be meant to evoke “abuse of power,” though the adjectival “abusive” is rarely used in that context. In any event, while they also use “erosion” and “backsliding” throughout the book, Dixon and Landau’s addition of “abusive constitutionalism” to the available metaphors helpfully makes clear that at least some instances of democratic decline are the product of intentionally harmful acts.Footnote 6
HALTING AND REVERSING DEMOCRATIC DECLINE
When describing the range of processes by which democratic quality has decreased, it is important to take the full measure because as we turn from diagnosis to cure, we may need different remedies to respond to each component of the disease. First, consider the threat posed by long-term institutional stagnation. If liberal democracies are experiencing erosion in the quality of key institutions, then the remedy is shoring up. The coastline on our public beaches used to be fine, but the passage of time has led to it gradually washing away. Left unchecked, this process will lead to bad results. Moreover, it may involve self-reinforcing dynamics that produce a risk of acceleration. If and when the water undercuts the shoreline, we may tip from gradual washing away to sudden collapse. As Robert Lieberman, Suzanne Mettler, and Kenneth Roberts (Reference Lieberman, Mettler and Roberts2022b, 7) put it, “[l]ike sand dunes that become more vulnerable to storms as they gradually erode, democracies can grow increasingly susceptible to more sudden destructive forces through erosion.”
To the extent that all of us recognize that failure to act will lead to a loss of public goods—the public beach is now gone—we may make a collective decision to build the seawalls necessary to prevent (or at least forestall) that outcome. With regard to democratic quality, one could imagine an aroused US public demanding nationwide bans on partisan gerrymandering or undisclosed dark money campaign spending. But, of course, if some among us have access to private beaches that we have already shored up, we may be agnostic about the disappearance of the public beach. Indeed, we may even welcome it if it means we can now charge the public to access our private beach. For these reasons, any effort to rein in partisan gerrymandering or campaign spending is likely to face intense resistance from interests that have benefited from the lack of attention to the slow decay of our democratic institutions.
Second, consider the dynamic of unintended harm to democratic norms, resulting from political elites’ unchecked focus on short-term partisan benefit. If liberal democracies are experiencing backsliding from commitments once held dear, the remedy is recommitment. In other words, if lawmakers have been acting in ways that benefited their short-term partisan interests and policy goals, but harmed democratic norms, they might at some point come to realize the costs of their past actions and renew their commitment to the democratic creed moving forward. Perhaps this is an apt description of US Representatives Liz Cheney and Adam Kinzinger, who were faithful supporters of much of the Trump administration’s agenda, but drew the line at Trump’s attempted subversion of the 2020 election. Importantly, if the source of democratic decline is a failure to heed prior commitments to democratic rules of the game, then the remedy may require recommitment from all parties. As Levitsky and Ziblatt (Reference Levitsky and Ziblatt2018, 204–31) emphasize, stemming democratic backsliding may require both that the autocratic leader’s co-partisans recommit to core democratic principles and that opposition party elites refrain from tit-for-tat escalation that undermines democratic commitments still further (see also Cleary and Öztürk Reference Cleary and Öztürk2022).
Third, consider the possibility that political elites are intentionally undermining democratic norms and institutions. If what democracies are experiencing is intentional abuse, the remedy is removing or sidelining the abusers. Because domestic abuse so often involves recurring incidents of cruelty or violence, some US jurisdictions require a mandatory arrest whenever a law enforcement officer has probable cause to believe that domestic violence has occurred (Hirschel et al. Reference Hirschel, Buzawa, Pattavina and Faggiani2007). Such policies ensure that the abusive partner is at least temporarily disabled from further harmful actions. European-style militant democracy arguments outline a set of institutions and guiding principles designed to prevent antidemocratic abusers from gaining access to state power (Kirshner Reference Kirshner2014). But in countries where militant democracy principles were not present or did not work, the task now is to identify and remove or sideline these abusers from positions of state power once they have gained it. Under conditions of partial democratic deconsolidation, some scholars have suggested that democracy outcomes are best when the opposition is able to remove would-be autocrats via existing democratic procedures, without escalating to broader forms of institutional combat (Cleary and Öztürk Reference Cleary and Öztürk2022). But if the autocratic leader has packed semi-autonomous executive or judicial institutions with opponents of democracy, then removing the autocrat himself may prove insufficient. If the leader’s allies and agents continue to intentionally undermine democratic norms and institutions, then pro-democracy reformers will face the challenge of either removing such antidemocracy abusers from office or shifting their authority to other institutions with firmer commitments to democracy.
In considering institutional reforms designed to remove or sideline antidemocracy abusers from positions of state power, it is important to keep in mind the limited range of alternatives that may be available to pro-democracy reformers. When existing democratic procedures prove inadequate to remove would-be autocrats, democracy advocates sometimes resort to civil unrest (Chenoweth Reference Chenoweth2021). Mass popular mobilization sometimes unseats autocratic leaders and dislodges anti-system parties, but, even when successful, the downstream consequences can be both bad and unpredictable. Hence, some scholars and democracy advocates have redoubled their efforts to identify and advance legal and institutional reforms that would steer US democracy back on course without the need for mass demonstrations in the streets. Some of these proposed reforms fit the metaphors of shoring up or recommitment, but, even in these cases, their successful enactment may require removing or sidelining the antidemocracy abusers currently in a position to veto the necessary reforms. As David Bateman (Reference Bateman2022, 366-67; emphasis added) has argued, the reasonably stable electoral institutions that characterized the late twentieth-century United States “seem increasingly brittle in the face of intense national competition. Shoring them up should be first on the list of democratic reforms, though doing so will … inevitably require shattering some norms” (see also Pozen Reference Pozen2019; Klarman Reference Klarman2021, 12). In other words, a new generation of federal voting rights legislation might reduce the number of antidemocracy abusers elected to positions of state power, but enacting such legislation would require sidelining the democracy opponents who already occupy key veto points in the lawmaking process.
The task of reforming liberal democratic institutions is further complicated by what Dixon and Landau (Reference Dixon and Landau2021, 3) call “abusive constitutional borrowing.” On their account, the post-2008 global decline in democratic health has coincided with the rhetorical triumph of liberal democracy. This apparent paradox is explained by the fact that “some of the most important hallmarks of liberal democratic constitutionalism—constitutional rights and judicial review, for example—can be subverted into powerful instruments to demolish rather than defend democracy” (3).Footnote 7 Having defined the concept, Dixon and Landau document the extent to which autocratic leaders have figured out how to convert independent courts and written rights guarantees into tools for consolidating power, repressing the opposition, and sidelining minorities (20). They support this account with a remarkable range of empirical examples, drawn from virtually all regions of the constitutional world.Footnote 8 They do not focus on the contemporary United States, but, on my reading, their account is relevant here as well.
LEGAL AND INSTITUTIONAL REFORMS TO DEFEND LIBERAL DEMOCRACY
If and when supporters of democracy retain or regain control of enough centers of state power to remove or constrain the autocratic leader/party and to buttress or rebuild democratic quality, they may be faced with tough normative and strategic decisions about whether institutional actions that might be objectionable in normal times are now justified (Pozen Reference Pozen2019). For example, if an autocratic leader is removable via impeachment or other existing constitutional procedures, democracy supporters in the opposition party may need to make use of such procedures on their own, even though their partisan deployment would be normatively dubious during ordinary times. Footnote 9 In this section, I explore two sets of legal and institutional reforms that have moved quickly from fringe to mainstream and have garnered increasing attention from scholars: Supreme Court expansion and limitations on extremist speech.
Supreme Court Expansion
During the run-up to the 2020 election, democracy advocates began making a vocal public case for Supreme Court expansion as a necessary component of democracy reform (Greenberg and Levin Reference Greenberg and Levin2019, 273–80). After several Democratic presidential candidates indicated openness to such proposals, Joe Biden pledged to appoint a commission to study the issue. Once in office, President Biden followed through by recruiting a group of distinguished scholars, advocates, and retired judges, charging them to investigate the legality and propriety of a range of potential court reforms, including enhanced ethics rules, term limits, and expansion. The commission was instructed not to make formal recommendations, but it did produce a three hundred-page report that thoroughly reviewed arguments—pro and con—regarding a variety of proposals (Presidential Commission on the Supreme Court of the United States [Presidential Commission] 2021). Meanwhile, several members of Congress have introduced legislation that would expand the size of the Supreme Court, impose term limits on the justices, implement new judicial ethics rules, and the like. Footnote 10
In this political context, a variety of scholars have newly engaged with the topic of Supreme Court reform in recent years, and these engagements have intersected with the debates regarding democratic decline that I have canvassed above. If democratic institutions are slowly eroding as a result of long-term, impersonal forces, or if elected leaders have succumbed to the temptation of sacrificing democratic norms in pursuit of short-term political gain, then independent courts may prove a valuable democratic safeguard. For example, the lifetime appointments of US federal judges sometimes enable them to act on longer time horizons, with a more institutional and less partisan orientation than elected legislators (Keck Reference Keck2007). If the quality of courts is eroding alongside other democratic institutions, then perhaps some good-governance court reforms would help shore them up or recommit them to their founding mission. But if an authoritarian leader or anti-system party is intentionally abusing democratic norms and institutions, and if they have captured control of a country’s apex court in an effort to further that agenda, then not only will courts cease operating as reliable safeguards, but they themselves may also become barriers to democratic renewal (Keck Reference Keck2022). On this account, rooting out or sidelining the judicial opponents of democracy may prove necessary.
Some of the proposals reviewed by the Biden commission fit the category of good-governance reforms to shore up the Supreme Court’s coastline or recommit it to its intended mission. For example, the commission’s report devotes substantial attention to term limits for Supreme Court justices (Presidential Commission 2021, 111–51), tightening of judicial ethics requirements (216–24), and potential regulatory limits on the use of non-standard judicial procedures (203–15). All of these proposals could in theory garner bipartisan support, as perhaps could reforms to Senate confirmation procedures. But the report also addresses some reforms that may be better understood as efforts to remove or sideline antidemocratic abusers. In particular, the report offers a brief history of previous efforts to alter the Supreme Court’s size, notes the “widespread agreement among legal scholars” that such efforts are legal, and admirably summarizes some key arguments for and against further changes (67–84).
Prior to the recent wave of democratic decline, scholarly attention to court expansion was limited. The comparative courts literature has canvassed some key episodes of court packing worldwide, particularly in Latin America, and has noted the negative impact of many of these episodes on judicial independence and democratic governance. In the US context, some historically oriented scholars have attended to the key nineteenth-century instances in which Congress altered the Supreme Court’s size or (more commonly) the key twentieth-century instance in which it nearly did so (Crowe Reference Crowe2012). The constitutional text does not specify the number of justices. Congress set it at six in 1789 but then changed the size seven times over the next eighty years. The size has been fixed at nine since 1869, but, in 1937, President Franklin D. Roosevelt (FDR), fresh off a landslide reelection, proposed expanding it to fifteen. Writing in 2018, Levitsky and Ziblatt (Reference Levitsky and Ziblatt2018, 118–23, 130–33) accurately captured the conventional wisdom in arguing that court packing generally violates key democratic norms and has been thankfully rare in the US context and that FDR’s plan was ill-considered and wisely rejected. More recently, however, a growing number of scholars have re-canvassed the relevant history, while also exploring new lines of inquiry regarding the practice’s contemporary relevance. In testimony to the Biden commission, for example, legal historian Laura Kalman (Reference Kalman2021) drew from her forthcoming book on FDR’s court-packing plan in challenging the conventional wisdom that it reflected a foolish and doomed overreach by an overconfident president (see also Tushnet and Bugarič Reference Tushnet and Bugarič2021, 148–76; Kalman Reference Kalman2022; Keck Reference Keck2022).
In a recent book-length treatment, Stephen Feldman (Reference Feldman2021) advances three distinct lines of argument in support of Supreme Court expansion, but his opening gambit is a historical argument. After an introduction to the issue of court packing, Feldman devotes a chapter to the nineteenth-century US cases, emphasizing that Congress regularly altered the Supreme Court’s size, almost always at least partly for political reasons (17–26; contrast Braver Reference Braver2020). Feldman’s key observation here is that partisan alterations in the Supreme Court’s size should not be considered out of bounds because they were once routine. I would add that most of the nineteenth-century instances occurred at moments of democratic crisis, with key political elites concluding that Supreme Court reform was necessary to preserve American democracy. During the Civil War and Reconstruction, for example, the northern Republicans who controlled Congress altered the Supreme Court’s size three times, first to prevent a pro-Southern court from undermining the Union war effort, then to prevent Democratic President Andrew Johnson from undermining Reconstruction after President Abraham Lincoln’s assassination, and, finally, to allow Union war hero Ulysses S. Grant to remake the Supreme Court once the presidency was back in Republican hands (Keck Reference Keck2022).
Feldman (Reference Feldman2021, 27–52) devotes an additional chapter to FDR’s court-packing plan, emphasizing the profoundly political nature of the anti-New Deal judicial decisions that led FDR to propose increasing the Supreme Court’s size (see also Tushnet and Bugarič Reference Tushnet and Bugarič2021, 159–61). During FDR’s first term in office, his efforts to respond to the Great Depression with new federal interventions into the capitalist economy were repeatedly thwarted by a conservative Supreme Court. The justices who issued these holdings thought of themselves as enforcing long-standing principles of limited government, but in the context of a modern capitalist economy, the public increasingly turned against their decisions preventing the government from regulating wages, working conditions, and even child labor.Footnote 11 In this context, FDR concluded, like the Civil War and Reconstruction Republicans before him, that court reform was necessary to preserve American democracy (Keck Reference Keck2022).
In addition to his historical argument, Feldman (Reference Feldman2021) advances both an abstract theoretical case for court packing and a straightforward political/ideological case. His theoretical case argues that the law-politics distinction is a myth, and hence that Supreme Court expansion is unlikely to undermine the independent force of law. In his view, Court expansion “cannot destroy the purity of the Court as a legal-judicial institution because the Court has never been pure—bereft of politics” (169). In a comparative treatment, Mark Tushnet and Bojan Bugarič (Reference Tushnet and Bugarič2021, 153) likewise emphasize that, since judges clearly exercise political power in some contexts, elected leaders will inevitably strive to hold them politically accountable, and “some degree of political accountability doesn’t compromise judges’ accountability to law when we understand ‘law’ broadly.”
Feldman’s political/ideological case emphasizes the sharply conservative turn in legal doctrine on the Supreme Court led by Chief Justice John Roberts since 2005. On this front, Feldman (Reference Feldman2021, 121–60) surveys recent doctrine on federal regulatory authority, particularly regarding health care; voting rights, campaign finance, and other aspects of election law; and reproductive rights, affirmative action, and religious freedom, where he characterizes recent case law as extending constitutional protections to whites and Christians but not to women or people of color. Feldman concludes this survey by describing the conservatism in the Supreme Court under Roberts as “deep and wide,” and he urges congressional Democrats “to add as many justices as necessary to create a progressive majority” (169). Here again, Tushnet and Bugarič (Reference Tushnet and Bugarič2021, 148–76) advance a complementary argument, emphasizing that evaluations of proposed court reforms will inevitably turn on the likely downstream policy consequences of reforming versus not reforming the court in question.
For some readers, however, the flatly results-oriented nature of Feldman’s third argument is likely to undermine the credibility of his other two. How much weight are the historical and theoretical arguments carrying, one might reasonably ask, if the driving thrust of Feldman’s account seems so clearly rooted in his own dissatisfaction with the contemporary Supreme Court’s decision-making? As with any reform to democratic institutions, the immediate political valence of a proposed change should not prevent scholars from exploring its implications for democratic health, but there may be ways to frame the case for court expansion that do a better job than Feldman’s at directing attention to these broader systemic implications. In other words, the statements “the current Court is captured by conservative interests” and “the current Court is contributing to democratic decline” might both suggest the need for reform, but only the latter frame points to any significant reason why citizens or lawmakers should pay attention to the assessment of scholars. Footnote 12
Dixon and Landau (Reference Dixon and Landau2021) provide valuable comparative context that may be helpful in this regard. They find that, while courts are sometimes designed to operate as democratic safeguards, autocratic leaders have regularly refashioned them “into weapons for, rather than against, abusive constitutional change.” They then illustrate both weak and strong forms of this phenomenon of “abusive judicial review.” Courts perform the role in its weak form when they “uphold legislation or executive action that significantly undermines the democratic minimum core” and, in its strong form, “when courts themselves remove or undermine democratic protections” (82). Dixon and Landau provide examples from Burundi, Cambodia, Ecuador, Hungary, Nicaragua, Poland, Thailand, and Venezuela, and a compelling case can be made that the Supreme Court under Roberts has engaged in both forms of the practice in the United States as well.Footnote 13 Examples of weak-form abusive judicial review by the Roberts court include its decisions upholding partisan gerrymandering, strict voter identification requirements, and the purging of voter rolls. Footnote 14 Examples of strong-form abusive judicial review include its decisions invalidating (or otherwise nullifying) key provisions of the 1965 Voting Rights Act and the 2002 McCain-Feingold Act. Footnote 15 As Aziz Huq (Reference Huq2022, 60) has argued, “[t]he net effect of these decisions is a shift in election-related administrative power from bodies less likely to engage in entrenchment to entities most likely to use such power to dampen responsiveness. The Court has in effect created the conditions for state legislatures to use their authority … over elections to entrench transient majorities beyond plausible majority challenge.” As a result, Huq concludes that under Roberts’s leadership, “the Supreme Court has elaborated several lines of doctrine that have enabled or accelerated democratic backsliding” (54; see also Klarman Reference Klarman2020, Reference Klarman2021).
Dixon and Landau (Reference Dixon and Landau2021, 83–85) argue that antidemocratic judicial decisions qualify as abusive only if they represent intentional efforts to undermine democracy rather than good faith interpretations of standard legal sources, but they acknowledge that motivated reasoning on the judges’ part can make “the line between intentional attacks on democracy and genuine belief in constitutional meaning … hard to discern” and that “[c]ourts engaged in intentionally antidemocratic forms of review have incentives to obscure their motives.” They also note their expectation that strong-form abusive judicial review will be more common “where political leaders lack other attractive avenues to achieve their goals”—for example, in systems where formal constitutional amendment is relatively difficult—and that the practice is particularly likely to emerge “in transitional contexts where [autocratic] actors are actively trying to dismantle liberal democracy” but do not yet have full control of government (112). Both of these conditions apply to the contemporary United States.
Conclusively establishing that the decisions undermining voting rights by the Roberts court represent bad faith judicial attacks on democracy is beyond the scope of this essay, but it seems clear that Republican Senate leaders altered established procedures to facilitate their capture of the Supreme Court, that Republican President Trump openly signaled his expectation that the captured court would rule in his favor on election law disputes, that the court has reversed long-standing precedents in the election law context, and that it has sometimes departed from standard judicial procedures in doing so—all red flags noted by Dixon and Landau (Reference Dixon and Landau2021) in their discussion of examples outside the US context. A growing variety of scholars have sounded this alarm (Klarman Reference Klarman2020; Huq Reference Huq2022; Keck Reference Keck2022). Feldman (Reference Feldman2021, 130–34) appears to agree, though he treats the Supreme Court’s decisions undermining democracy as only one of many sets of decisions that collectively warrant an aggressive Democratic response.
Given the possibility of abusive judicial review—that is, the intentional use of courts to undermine democratic health—Dixon and Landau conclude that Court expansion, though risky, may sometimes represent a necessary and proportionate response to democratic decline. Tushnet and Bugarič (Reference Tushnet and Bugarič2021, 148–76) likewise argue that politically motivated alterations in the size of courts are sometimes justified, a conclusion endorsed by a number of scholars in recent years (see also Weill Reference Weil2021; Keck Reference Keck2022; Daly, forthcoming). Some of these scholars have framed Supreme Court expansion proposals as a form of “constitutional hardball,” a term coined by Tushnet (Reference Tushnet2004) to indicate political tactics that are not formally unconstitutional but that represent unusually aggressive challenges to existing norms and institutions. The literature on constitutional hardball acknowledges the danger of tit-for-tat escalation but contends that hardball tactics are nevertheless sometimes merited, particularly in response to unrelenting hardball on the part of one’s political opponents (Fishkin and Pozen Reference Fishkin and Pozen2018; Pozen Reference Pozen2019).
The Biden commission’s report does an admirable job of synthesizing these arguments. The report notes “profound disagreement” among the commission’s members as to the merits of Supreme Court expansion but lays out three sets of arguments in its favor (along with several arguments against) (Presidential Commission 2021, 74): (1) responding to recent norm violations, such as the Senate’s inconsistent handling of election-year nominations of Merrick Garland and Amy Coney Barrett as associate justices in 2016 and 2020, respectively (75–76); (2) “prevent[ing] the continued undermining of our democratic system of government,” an ongoing process that some scholars believe has been “exacerbated by the Court’s jurisprudence” (75); and (3) enhancing the diversity of the Supreme Court’s membership and improving its performance (78–79). The first of these arguments characterizes proposed Supreme Court expansion as a potential norm violation by Democrats, but one that may be justified as a response and corrective to prior norm violations by Republicans. If Republican Senate leaders used hardball tactics to “secure a conservative supermajority on the Court,” perhaps Democratic leaders should use similar tactics to help restore the balance of power that would have been in place absent the prior norm violations and to disincentive further Republican hardball moving forward (75–77).
The third argument references testimony submitted to the commission by Jamal Greene (Reference Greene2021), Vicki Jackson (Reference Jackson2021), and other leading scholars who drew on historical and comparative evidence to suggest a range of ways in which a larger Supreme Court might represent a better court. For example, as a means of regularizing and equalizing presidential opportunities to shape the court’s composition, Jackson recommended the “‘decoupling’ of appointments from vacancies, by guaranteeing one, or two, presidential appointments each term, while letting the overall numbers on the Court fluctuate” (17). Greene (Reference Greene2021), for his part, testified that
[a]mong the many potential drivers of the need for reform of the modern Supreme Court, one stands out as nonpartisan, undeniable, and incompatible with constitutional democracy: the disproportionate amount of power each individual justice wields. The justices of the US Supreme Court are too few, they hold office for too long, they are too easy to seat, and they exercise too much discretion over the cases they hear and the political identity of their replacements. (1)
On Greene’s account, the combination of “life tenure, a small number of justices, partisan selection, and full agenda control … [is] unheard of outside the United States, and for good reason.” He proposed addressing these institutional design defects by implementing “a 16-member Court whose members serve 16-year terms and are drawn from what are now designated as the courts of appeals” (17).
These first and third arguments reflect valuable creative thinking about the merits of Supreme Court reform, but I focus for the moment on the second argument—that is, that the Court’s role in ongoing processes of democratic decline renders court reform an essential component of democracy reform writ large (Presidential Commission 2021, 77–78). Here, citing the testimony of Michael Klarman, the report emphasizes the recent run of Roberts court decisions undermining voting rights and raises the possibility of further decisions invalidating a variety of new democracy-enhancing laws that Congress might enact in the coming years (77).Footnote 16 These passages make clear that some of the commission’s members viewed Supreme Court expansion as justified given the ongoing threat of antidemocratic abuse. This group included Nancy Gertner, a retired federal judge who was firmly opposed to Court expansion at the outset of the commission’s work, but was persuaded by the range of scholarly testimony demonstrating the threat of further democratic decline (Gertner and Tribe Reference Gertner and Tribe2021).
Together with Judge Gertner, my reading is that the best normative justification for Supreme Court expansion—and certainly the one for which social scientific accounts of courts are most relevant—is that it sometimes proves necessary to break a downward spiral of democratic decline. If a leading political party has turned against democracy, and if that party’s allies on the bench are using judicial power to assist in antidemocratic abuse, then court reform may prove a necessary component of successful democracy reform. Consider the range of democracy reforms that scholars, advocates, and Democratic lawmakers have called for in recent years. Larry Diamond’s (Reference Diamond2019) list is as good a starting point as anyone’s. In a 2019 book, he called for ranked choice voting, a repeal of so-called “sore loser laws” that make it more difficult for candidates to run as independents, a ban on partisan gerrymandering, the restoration of the Voting Rights Act and other policies to ease registration and voting, the elimination of the Electoral College, filibuster reform and other congressional rule changes to enable more effective lawmaking, full disclosure of all campaign spending, democracy vouchers (a form of public financing for campaigns), increased election security to protect against foreign interference, and “lobbying reform to reduce the influence of wealthy special interests and foreign governments” (253–83). Diamond (Reference Diamond2019) does not mention court reform, but, as the Biden commission’s report suggests, the current Supreme Court might well narrow or invalidate many of these democracy reforms once enacted (Presidential Commission 2021, 77–78; see also Klarman Reference Klarman2021, 17). If this assessment is accurate, then successful democracy reform will require measures to sideline the antidemocratic abusers currently in place on the Supreme Court. One way of doing so would be to add additional democracy supporters to the bench.
If and when congressional Democrats attempt Court expansion, they will be met by waves of denunciation for undermining judicial independence. But with Dixon and Landau (Reference Dixon and Landau2021, 23–24), we should be able to distinguish between institutional reform that “makes the constitutional order meaningfully less democratic than it was previously” (which they label “abusive”) and reform that preserves or improves upon the democratic status quo. As Dixon and Landau conclude, “the broad range of retaliatory measures against courts, ranging from passing constitutional amendments to override judicial decisions to dodgier tactics such as stripping jurisdiction and packing a court, may have both pro- and anti-democratic uses.” As such, they are “skeptical” of any “flat rule against court-packing.” At least in “extraordinary cases,” as when faced with “a court that was itself engaging in forms of abusive judicial review,” “‘packing’ a court may be both pro-liberal and pro-democratic.” In evaluating such efforts, “there is no substitute for observing the contexts in which arguments are deployed, and their effects on the democratic minimum core” (175).
Limitations on Extremist Speech
Free speech and press rights are under significant stress worldwide (Alizada et al. Reference Alizada, Cole, Gastaldi, Grahn, Hellmeier, Kolvani, Lachapelle, Lührmann, Maerz, Pillai and Lindberg2021, 24–25). Censorship has been an important tool of autocrats from time immemorial and has remained so for illiberal leaders like Viktor Orbán and Recep Erdoğan during the post-2008 wave of democratic decline (Haggard and Kaufman Reference Haggard and Kaufman2021; Mchangama Reference Mchangama2022). If these developments are matters of democratic erosion or backsliding, then what liberal democracies need is shoring up or recommitment. In other words, reliable protection of free speech and press rights is a core component of liberal democracy and if the world’s democracies have failed to maintain vigilance in defense of these rights, then they should renew their devotion to the cause. When faced with leaders whose commitments to free speech are slipping, democracy advocates should urge them to recommit and should build the seawalls necessary to prevent further damage.
However, if liberal democracies are facing not (just) impersonal decay but (also) intentional abuse, then democracy advocates will still need to watchdog infringements on free expression by autocratic leaders, but will also need to be on the lookout for efforts to weaponize free speech arguments against democracy. Dixon and Landau (Reference Dixon and Landau2021, 59–66) address the relevance of abusive constitutional borrowing in the free speech context but only indirectly. They detail the efforts of autocratic leaders in Rwanda, Poland, and Russia to borrow and redeploy West European restrictions on hate speech. As they note, the post-2003 Rwandan state “took the basic concept of hate speech or genocide-promotion but broadened its definitions considerably and made them much more ambiguous”; the governing party then used these laws “to target the political opposition” (61). Likewise, the Putin regime in Russia and the governing Law and Justice party in Poland borrowed from German and French laws criminalizing Holocaust denial to ban public accounts of the Second World War that paint Russia or Poland in a bad light (64–65).
Dixon and Landau (Reference Dixon and Landau2021) describe these speech restrictions as instances of abusive constitutional borrowing—that is, the use of liberal, democratic tools for antidemocratic ends—but I would argue that the misappropriation of free speech protections is an even clearer illustration of their concept. After all, the liberal democratic legitimacy of hate speech laws is the subject of considerable dispute (Herz and Molnar Reference Herz and Molnar2012). But free speech protections are unquestionably of liberal, democratic vintage, and they too can be weaponized against liberal democracy.
The Internet and social media were once hailed as valuable advances because they made it cheaper and easier for ordinary citizens to communicate with one another, even under authoritarian governments that kept a tight lid on legacy media (Diamond Reference Diamond2019, 227–29). But Vladimir Putin, Xi Jinping, and other autocratic leaders have adapted to the Internet era by developing new tools to censor online speech that threatens key state interests (Diamond Reference Diamond2019, 236–37; Mchangama Reference Mchangama2022, 331–35). In addition to censoring online speech, moreover, these leaders and other antidemocratic abusers have weaponized the Internet as a tool to undermine democracy from within. Russian interference in foreign elections, including the 2016 presidential election in the United States and the Brexit referendum in Britain, exploited the free and open Internet in liberal democracies to sow extreme polarization and weaken public faith in free and fair elections (Diamond Reference Diamond2019, 232–33; Hasen Reference Hasen2022, 48–52).
In the contemporary US context, the relationship between free speech and democracy is complex. On the one hand, First Amendment law serves an important role as a democratic safeguard. Content-based restrictions on speech have been largely out of bounds for more than half a century, so while President Trump regularly threatened to change US libel laws to make it easier for politicians to sue media outlets over unfavorable coverage, New York Times v. Sullivan (1964) prevented him from actually doing so (Mchangama Reference Mchangama2022, 389).Footnote 17 As such, judicially enforceable speech and press rights remain a valuable potential check on antidemocratic abuse. On the other hand, First Amendment law, as it is currently practiced, serves to undermine democratic health in key respects. In particular, the current Supreme Court’s understanding of the First Amendment serves as a barrier to a long list of potential reforms that would shore up the coastlines of American democracy.
Richard Hasen’s (2022) Cheap Speech details the variety of ways in which false online speech has contributed (and continues to contribute) to democratic decline in the United States. In 2016, the country witnessed “an explosion of disinformation and political manipulation aimed at influencing the presidential election, some spread by the Russian government.” For example, the Russians sought to suppress the votes of African Americans by repeatedly posting “anti-Clinton material on social media accounts meant to appear as representing the views of African American citizens” (16; see also 48–52). Russian use of social media to interfere in the 2016 US presidential election is extensively documented in the Mueller report, but Hasen’s brief recounting of the relevant events is more readable and likely to reach a wider audience. Footnote 18
By 2020, the main threat came from within. In the run-up to the November 2020 election, President Trump repeatedly made “false statements about the fairness and security of voting by mail—a method that has been employed since the Civil War and that he, his family, and his associates have regularly used in past elections.” In the days following Election Day, “Trump repeatedly and falsely claimed victory—even a ‘landslide.’” In subsequent weeks, Trump’s lawyers (and those of his supporters) filed dozens of election challenges but “did not present any real evidence of significant voter fraud anywhere.” Trump nonetheless ramped up his false public statements on this front, making at least four hundred claims of voter fraud on social media in the three weeks following election day. Both before and after election day, leading social media platforms “let false information about voter fraud … get shared with millions of readers” (Hasen Reference Hasen2022, 2–8). Throughout this period, Trump also pressured multiple Republican governors, state election officials, Department of Justice leaders, and Vice President Mike Pence to reverse the election.
Most ominously, Trump used his large social media platform to invite supporters to the nation’s capital for a protest on January 6, 2021, when Congress would count the electoral votes and certify Biden’s victory. Trump famously promised that the protest would be “wild” and repeatedly used violent language in describing the stakes. Trump continued in this vein with an “incendiary speech” in Georgia on January 4 and another one in Washington, DC, on the morning of January 6. In the preceding weeks, moreover, Trump’s supporters had regularly used Facebook and other social media platforms to promote and plan for the events of that day. On the afternoon of January 6, hundreds of Trump supporters stormed the capitol, some of them armed with military-grade tactical gear. The rioters injured more than one hundred law enforcement officers; threatened violence against Vice President Pence, Speaker Nancy Pelosi, and other congressional leaders; and successfully disrupted the vote count until late that night. During the violent assault, Trump continued to make public statements criticizing Vice President Pence, praising the rioters, and complaining that the election had been “stolen from us” (Hasen Reference Hasen2022, 10–14).
These events received substantial mainstream media coverage in the United States, but they have also been the subject of substantial disinformation from Trump and his allies. As such, one of the merits of Hasen’s book is laying out some key facts for the historical record. Beyond the events of January 6, 2021, Hasen also recounts more generally “how the dramatically decreased costs of disseminating written, audio, and visual content,” which Eugene Volokh (Reference Volokh1995) presciently dubbed “cheap speech” in 1995, has “undermined the mediating and stabilizing institutions of American democracy, including newspapers and political parties, a situation that has had severe social and political consequences for American elections” (Hasen Reference Hasen2022, 19–20).
In the midst of the January 6 violence, Facebook and Twitter suspended Trump’s accounts, and, just one week later, the House of Representatives impeached him for his role in inciting the violence and seeking to overturn the election results. Both decisions present difficult questions about the relationship between free speech and democracy. As Hasen (Reference Hasen2022, 19) asks regarding Facebook and Twitter, “[d]id the platforms wait too long to deplatform Trump, risking the health of American democracy, or is removal of a political leader a kind of private ‘censorship’ that the powerful companies should not have been allowed to undertake?” Hasen’s own answer is that the tech companies’ de-platforming of Trump “was the right call, although it came too late” (145). Indeed, when Facebook’s Oversight Board reviewed the company’s decision, Hasen joined with several colleagues to file a public comment urging the board to refrain from ordering Trump’s account reactivated at least until he had ceased making false public statements that threatened US election integrity. Footnote 19
The answer offered by Trump and his supporters, of course, is different. Trump’s lawyers argued that both the social media companies and the US House were threatening his speech rights and, hence, that he should be re-platformed online and acquitted by the Senate. In their trial memorandum in Trump’s 2021 impeachment, for example, they contended that his speech on January 6 was “fully protected by the First Amendment” and, hence, that “convicting him would violate the very Constitution the Senate swears to uphold.”Footnote 20 In support of this contention, they cited a range of First Amendment case law but relied in particular on Brandenburg v. Ohio (1969), which held that incitement may only be punished when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Footnote 21
In this political context—with an autocratic leader repeatedly weaponizing free speech arguments to undermine democratic health—some democracy supporters have begun to consider speech restrictions that, like court expansion, they might ordinarily see as illegitimate. When a variety of public figures sued Fox News and other right-leaning media outlets, alleging false and defamatory claims about their role in (non-existent) election fraud, Rodney Smolla and other leading First Amendment scholars and advocates indicated sympathy for legal sanctions on false election-related speech (Peters Reference Peters2022). In 2022, Washington Governor Jay Inslee, a Democrat, announced his support for state legislation that would ban office holders and candidates from making certain intentionally false election-related statements. Footnote 22 Governor Inslee’s allies in the state legislature followed up by comparing the regulation of “knowingly … false statements directed at undermining the integrity of our elections” with the regulation of perjury directed at undermining “the integrity of the judicial system.” Among other things, the proposed legislation would ban candidates from making knowing, reckless, or maliciously false claims of electoral victory. Footnote 23
Whether or not restrictions on false election-related speech are enacted, in Washington State or elsewhere, Inslee’s proposal indicates that US democracy advocates have begun to think creatively about the dangers of antidemocracy speech. Scholars have begun to take notice. Writing before the 2020 election, Diamond (Reference Diamond2019) effectively documented the threat to democracy posed by online speech, but he proposed no policy changes commensurate to the scale of the threat. He advanced a number of salutary calls for voluntary efforts on the part of Internet and social media companies to increase transparency and the like, but he criticized European policy responses such as the 2017 German Network Enforcement Act as overreach.Footnote 24 In the US context, Diamond’s only explicit reform proposal on this front was the Honest Ads Act, which would extend existing disclosure requirements for political advertising on broadcast media to cover social media as well. Footnote 25
As Hasen (Reference Hasen2022) notes, even this modest reform will likely face First Amendment barriers. Indeed, he recounts how Bush-era efforts to persuade the Federal Election Commission (FEC) to extend campaign spending disclosure rules from television and radio to online speech were beaten back by “libertarian opposition to any regulation related to campaigns and the Internet” (90). The Honest Ads Act would reverse this non-action by the FEC, but only if the Supreme Court upholds it, a doubtful proposition given that the court’s 2010 decision in Citizens United v. Federal Election Commission opened the floodgates for essentially unlimited election-related spending, and several subsequent decisions weakened the state’s ability even to mandate disclosure of the sources of that spending.Footnote 26 On Hasen’s (2022, 22–29) account, contemporary First Amendment doctrine is, at best, ill-equipped to address these challenges and, at worst, stands as a firm barrier to doing so effectively.
Despite these hurdles, Hasen (Reference Hasen2022) goes significantly further than Diamond (Reference Diamond2019) in his calls for reform, perhaps partly because his book, unlike Diamond’s, was written after the events of 2020–21. Hasen (Reference Hasen2022, 139–63) joins Diamond in calling for a range of voluntary actions by social media companies and civil society actors to reduce the harms caused by antidemocratic speech, but he also devotes a chapter to potential legal and policy responses. Here, Hasen calls for tighter bans on foreign election expenditures (102–9); clear disclosure rules for online election advertising (85); mandatory labeling of so-called “deep-fake” altered audio and video of political candidates (97); prohibiting or regulating the “microtargeting of political advertising on websites, social media platforms, and apps” (118–20); and banning “false speech about the mechanics of voting,” possibly including “false postelection statements that an election was rigged or stolen” (110–11). Footnote 27
Hasen himself thinks each of these proposed reforms consistent with the First Amendment, properly understood, but he also observes that they are all likely to face skepticism from the current Supreme Court. In other words, the current court’s hyper-libertarian conception of the First Amendment is a barrier to multiple, common-sense democracy preservation reforms. As a result, defending American democracy currently requires advocacy of potentially unconstitutional restrictions on speech. If and when they are enacted, some of Hasen’s policy proposals would likely be struck down in court, and all of them would be denounced by critics as unconstitutional infringements on the First Amendment. Given this dynamic, a broad rethinking of contemporary First Amendment doctrine may be in order. One source of inspiration could be European-style militant democracy arguments.
MILITANT DEMOCRACY, US STYLE
To summarize my argument so far, the threat of democratic decline, particularly in its intentional abuse form, has prompted consideration of policies that in a stable consolidated liberal democracy would likely be considered illegitimate. Like partisan impeachments, court packing and speech suppression are dangerous, but, at some point down the path of antidemocratic abuse, the risks of their use may be surpassed by the risks of inaction. To use an example from Dixon and Landau (Reference Dixon and Landau2021), international economic sanctions imposed on high court judges would ordinarily represent a dangerous assault on judicial independence, but when imposed on members of Nicolás Maduro’s packed Supreme Court in Venezuela, which had been invalidating every major piece of legislation enacted by the opposition-controlled legislature, they may appear in a different light (99–103).
In thinking through the implications of constitutional hardball in defense of democracy, US-based scholars should devote greater attention to the militant democracy tradition in postwar Europe. As summarized by Dixon and Landau (Reference Dixon and Landau2021, 103), many national constitutions authorize their apex courts to implement commitments, pioneered by the postwar German Basic Law, “that liberal democratic orders may be able to ban antidemocratic parties, movements, and politicians that would seek to undo that order if they succeeded in winning power.” Militant democracy arguments have been subject to substantial critique, and as Dixon and Landau note, they are sometimes borrowed and perverted to serve antidemocratic ends (103–12, 194–95; see also Ginsburg and Huq Reference Ginsburg and Huq2018, 170–73; Sadurski Reference Sadurski2019, 183). In much of the liberal democratic world, however, they provide a helpful focus for conversations about safeguarding democratic norms and institutions. American judges, lawyers, and scholars may assume that these arguments are inapplicable to the United States because they are unnecessary in long-stable democracies, are rooted in interwar European history that has no US parallels, or are inconsistent with bedrock First Amendment doctrine, but all three of these premises are questionable.
In an influential 2015 book, Samuel Issacharoff (Reference Issacharoff2015, 121) noted that “[m]any deeply antidemocratic groups are willing to vie for power through the electoral arena; few, if any, are willing to give up power that way. The definition of groups that are tolerable within a democratic order must turn, at the very least, on those groups’ willingness to be voted out of office should they come to hold power.” Issacharoff was writing about “newly forged democracies” that remained “deeply fragile” because their institutions were “porous to antidemocratic elements. That porousness requires an ability to restrict the capture of governmental authority by those who would subvert democracy altogether.” In particular, “fragile democracies need the ability to discipline electoral activity without regard to the imminence of criminal or insurrectionary conduct” (124). Issacharoff did not think this warning applied to the United States, where “[d]efeated presidents have always yielded power, and … all presidents run for reelection assuming they will depart if the voters tell them to” (130). The events from November 3, 2020, through January 6, 2021, make clear that this premise no longer holds, raising the question whether Issacharoff’s prescription now applies to the United States as well. In other words, if US democratic institutions are now porous to antidemocratic elements, then militant democracy principles developed elsewhere may now be relevant.
Issacharoff (Reference Issacharoff2015) highlighted the same risk emphasized by Dixon and Landau (Reference Dixon and Landau2021)—that militant democracy principles create “dangerous powers” that may sometimes be deployed not to defend democracy but, rather, to shield incumbents from legitimate opposition. Writing before Trump’s presidency, he thought that, in stable democracies, the abuse of state power to silence opposition was a greater threat to democracy than the rise of domestic extremism. But the balance of threats may have shifted. Hasen (Reference Hasen2022, 164), for his part, acknowledges that the risks of state censorship are real and significant, but argues that in the specific context of the Trump-era United States, we should be at least as worried about “the risk of citizens’ exposure to disinformation that undermines … their ability to act as competent voters [and] their faith in the mechanics of democracy itself.”
For American lawyers and judges tempted to dismiss European militant democracy arguments out of hand, it is worth remembering that they are not in fact foreign to US law. As Issacharoff (Reference Issacharoff2015) notes, Reconstruction-era US politics included extensive efforts at what democratization scholars now call lustration. Following the Civil War, President Abraham Lincoln’s Republican allies in Congress took repeated steps to prevent the white southern traitors from returning to power, both locally and nationally. These efforts ultimately failed, but they live on in section 3 of the Fourteenth Amendment, which provides that office holders who take an oath to support the Constitution, but then engage in “insurrection or rebellion against the same,” shall be barred from public office moving forward. Section 3, as clear a constitutional enactment of militant democracy principles as can be found anywhere, was long forgotten, but it has recently been invoked in several lawsuits seeking to bar from office Trump supporters who participated in the January 6 insurrection.
Reconstruction is the clearest example from US constitutional development, but far from the only one. Following the Russian Revolution, the twentieth century witnessed repeated bouts of state efforts to ban left-wing extremist speech and parties, and, for most of this history, US courts upheld such bans as legitimate efforts to prevent the overthrow of democratic government. Footnote 28 The Supreme Court under Chief Justice Earl Warren eventually turned away from these holdings, adopting what is now known as an American exceptionalist approach to free speech, even for extremists.Footnote 29 But, prior to these holdings, leading US judges repeatedly voiced militant democracy style arguments for suppression of speech that threatens the democratic order (Carrington et al., forthcoming). The most famous example is Justice Robert Jackson’s dissenting objection in Terminiello v. Chicago (1949) that his colleagues were threatening to “convert the constitutional Bill of Rights into a suicide pact.” Footnote 30
Justice Jackson’s views reflected his experience prosecuting Nazi war criminals at Nuremberg as well as his observations regarding the emerging Cold War between the United States and the Soviet Union. As the Cold War receded in the late twentieth century, the Supreme Court turned away from these arguments. With American democracy seemingly secure from existential threats, the court picked up on Justice Oliver Wendell Holmes’s remarkable observation in Gitlow v. New York (1925): “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Footnote 31 The fatalism expressed here by Justice Holmes is roundly rejected by militant democrats, who urge democratic states to actively defend the continued survival of democratic governance (Kirshner Reference Kirshner2014).
The question of the hour—with US democratic institutions apparently subject to the same vulnerabilities as those elsewhere and with powerful opponents of democracy exploiting those vulnerabilities—is whether any legal and institutional reforms might help achieve a course correction. It is in this context that we should understand the increasing scholarly attention devoted to Supreme Court expansion and the distinctive pathologies of contemporary First Amendment doctrine.
DEFENDING LIBERAL DEMOCRACY FROM INTENTIONAL ABUSE
Judicial review, in general, and First Amendment law, in particular, currently operate as barriers to democratic renewal in the United States, even while also continuing to serve as democratic safeguards in some respects. As such, evaluations of court reform and restrictions on extremist speech are likely to turn in significant part on competing understandings of the severity and nature of the threat to liberal democracy. Those who have emphasized unintended processes, well captured by metaphors like erosion or backsliding, have tended to argue that the key mechanism for checking democratic decline is for cross-partisan coalitions of political elites to rise up in defense of democratic norms and institutions. For example, Levitsky and Ziblatt (Reference Levitsky and Ziblatt2018, 53–71, 188–91, 223–26) point to the importance of center-right party elites recommitting to fundamental democratic norms of mutual toleration and institutional forbearance. Ginsburg and Huq (Reference Ginsburg and Huq2018, 192–97, 211–18, 222–30), for their part, call for shoring up key features of constitutional design, such as horizontal checks on the executive, that have sometimes garnered bipartisan support. Hasen’s (2022) and Diamond’s (2019) calls for voluntary reforms by social media companies and civil society actors fit well in this tradition, but Hasen’s account also points to two reasons why these mechanisms may not work in the Trump-era United States. First, Hasen (Reference Hasen2022, 164) suggests that “the biggest threat to democracy’s survival” is the “ability of malicious actors to spread disinformation.” To the extent that we are dealing with malicious actors engaged in intentional antidemocratic abuse, it seems unlikely that the problem can be solved by reminding people to recommit to their democratic ideals. Second, Hasen’s account of the events of 2020–21 raises doubt about the presence of Republican party (GOP) elites in sufficient numbers to fill out a cross-partisan, pro-democracy coalition capable of shoring up democratic institutions. The relative absence of Republican elites willing to play the guardrail role against their own partisan leader was made clear during Trump’s second impeachment trial, when most GOP members of Congress declined to seize a clear opportunity to legally bar Trump from future office.Footnote 32 Just as Reconstruction-era Republicans reformed American democracy without assistance from their Democratic colleagues, Trump-era Democrats may find themselves acting alone as well.
Reform of long-standing democratic norms and institutions is risky and should not be undertaken lightly. But stubborn adherence to the status quo in the face of new threats is also risky. As Biden’s Supreme Court reform commission noted, advocates of court expansion “emphasize that maintaining the status quo would amount to a failure to pursue available reforms with the potential to restore the Court’s role as ensuring the representativeness of government and the operation of democracy. On this view, any risks associated with expanding the Court at this time would not compare in severity to the failure to take action” (Presidential Commission 2021, 78). For twenty-first-century liberal democracies, no safe harbor is available.
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I close with one final observation, relevant to Dixon and Landau’s (2021) argument in particular. If and when US democracy advocates succeed in enacting Supreme Court expansion or restrictions on extremist speech, one potential downside is the prospect of abusive constitutional borrowing by less democratic regimes elsewhere. In testimony submitted to Biden’s commission, Dixon (Reference Dixon2021a, 11) cautioned that a key downside risk of many court-curbing proposals under consideration was that they would “be understood by a range of foreign actors as license to adopt the same tactic in their own country, but for distinctly less democratic purposes.” In a subsequent op-ed, she voiced the same concern regarding Supreme Court expansion (Dixon Reference Dixon2021b).
Dixon’s suggestion that US democracy advocates should take some reform proposals off the table because their use could be copied and abused by autocratic leaders elsewhere is a plausible argument for resolving a difficult tradeoff. As Dixon and Landau (Reference Dixon and Landau2021, 193–96) acknowledge in their book, however, that prescription is likely applicable only in extreme cases. After all, since even unquestionably liberal democratic norms and institutions like judicial review and free expression can be copied and abused by autocratic leaders, refraining from actions for fear of copycat abuse seems a losing game (179). Dixon and Landau are on stronger ground when they treat the future possibility of abusive borrowing not as a prescription for avoiding necessary reforms but, rather, as a reminder to design those reforms in ways that incorporate their pro-democratic purposes as clearly as possible. They characterize this focus on “abuse proofing” as an effort to avoid harmful copycat measures by autocratic leaders elsewhere, but the concern seems relevant domestically as well (196–200). In other words, as the global crisis of liberal democracy continues to unfold, one distinctive role for socio-legal scholars is to help democracy advocates design even hardball democracy reforms in ways that minimize any potential damage to democracy at home.
On this front, Hasen (Reference Hasen2022) takes great pains to emphasize his civil libertarian commitments and, hence, to frame his proposed regulations of cheap speech in ways that reduce the scope of any threat to free expression. Likewise, many of the Supreme Court reformers who testified to the Biden commission have advanced creative proposals for altering the court’s size and structure in ways that respect judicial independence and do not simply transfer control of the Supreme Court from one partisan coalition to another. As Dixon and Landau (Reference Dixon and Landau2021, 200) conclude, articulating and defending liberal democratic norms “in a way that is more conscious of the sometimes substantial risks of abuse is one of the more important ways in which scholars … can make a difference.” Put another way, scholarly treatments of democratic decline can help sharpen for citizens and policy makers the key tradeoffs implicated by proposed democracy reforms. If and when democracy advocates find themselves with moments of opportunity to enact reforms targeting antidemocratic erosion, backsliding, and abuse, what lessons can we draw from other times and places for doing so in maximally constitutionalist fashion?
