Foreword: The Degradation of American Democracy—and the Court

Erosion, Backsliding, or Abuse: Three Metaphors for Democratic Decline

“…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 2020Klarman , 2021. Dixon and Landau (2021, 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."…”

“…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 (2021) in their discussion of examples outside the US context. A growing variety of scholars have sounded this alarm (Klarman 2020;Huq 2022;Keck 2022). Feldman (2021, 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.…”

“…. MichaelKlarman (2021; see alsoKlarman 2020) testified to the commission that Americans face "both a long-term problem in the way we constitute our Supreme Court and an immediate existential threat to democracy, attributable largely to today's Republican Party and exacerbated by the way in which the current Republican Justices have used their power to : : : further their party's assault on democracy. "Erosion, Backsliding, or Abuse 327…”

Constitutional Norms—Erosion, Sabotage, and Response

“…Systematic norm sabotage has resulted in capture of the Supreme Court and the federal judiciary by the electorally dominant, but national minority, Republican Party (weakened somewhat after the 2020 election). Consequently, many legal scholars, pundits, and political observers argue that court reform is key to restoring American democracy (Klarman 2020; New York Times 2020). To resist permanent erosion of democracy‐sustaining norms, they argue, vigorous efforts in response to sabotage in this area are necessary.…”

“…Perhaps the most vigorously defended strategy proposes expanding the Court to undo the Republican Party’s capture of the Court (Doerfler and Moyn 2021; Goldstone 2020; Jurecic and Hennessy 2020; Klarman 2020, 245–52; Kramer 2020; Neal 2020; Tushnet 2019). The norm‐defying actions of the Senate Republicans, proponents argue, in effect “packed” the Courts, first, by reduction.…”