The Supreme Court and the Dynamics of Democratic Backsliding

Abstract

This article explores the role of the U.S. Supreme Court in contemporary democratic backsliding. I identify three dynamics that have placed American democracy under strain: (1) the incomplete democratization of national institutions created in 1787; (2) a half century of rising inequalities in wealth, market power, and political influence; and (3) a resurgence of intolerant, authoritarian, white-ethnic identity politics associated with the Republican Party. I argue that the Court has proved itself to be capable of creating linkages between these distinct institutional, economic, and sociocultural domains. In doing so, the Court has enabled the transformation of economic or sociocultural power into durable political power and the transformation of political power into the entrenchment of a “permanent minority” immured from democratic defeat. I describe specific doctrinal mechanisms by which this arbitrage role is performed, showing how the Court can be a vector of democratic backsliding.