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.
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