Shipwrecking democracy and the rule of law

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Watching the unfolding reality show of United States politics in 2020 has left many European observers deeply perplexed. How can a big and strong democracy, a superpower and permanent member of the UN Security Council, a giant of the global economy, the birthplace of so many innovations and ideas, be in such a shipwrecked state?

A perfect storm

There are sociological and historical reasons for the sad state of American democracy, related to the deeply conflictual foundation upon which the United States of America was built. Nevertheless, a focus on the constitutional dimension of the issue is justified. The Constitution is a major part of the problem and also helps in understanding why legal battles have such a central place in US political culture.

The current situation is a ‘perfect storm’ where the underlying societal and historical foundations, the failure over two centuries to establish a proper constitutional framework for a democracy governed by the rule of law have created optimal conditions for the wave of authoritarian populism. America is facing a tsunami, and we do not know whether democracy or the rule of law will survive.

A prominent judiciary susceptible to politics

The US Constitution is the oldest in the world, and in some respects also the worst. It is short, unclear and almost impossible to amend. Its Article III on the Supreme Court and other courts gives a prominent place to the judiciary but does not even establish the power of judicial review over laws passed by Congress, something that was only later created by the Supreme Court itself in the 1803 case of Marbury v Madison.

Furthermore, as is typical for many constitutions—even in democracies—courts are not protected from initiatives by the legislature to change the number of justices. This is why the possibility of so-called court-packing, or the appointment of additional justices by a potentially new Senate majority, will be of crucial significance when, in 2021,  the country will seek to re-determine its future.

President Donald Trump’s rush to fill a vacant seat on the Supreme Court, created by the death of the liberal icon Ruth Bader Ginsburg only one-and-a-half months before the election, encapsulates the extraordinary nature of the situation. Trump’s candidate, Amy Coney Barrett, is likely to be confirmed one week before election day. Nevermind all the Republican posturing before the 2016 elections when President Barack Obama’s judicial nominations were blocked for more than a year under the seemingly valid justification that courts, and especially the Supreme Court, are so important that the people must have a say.

Indeed, the main legacy of President Trump will be his systematic packing of the Supreme Court and all federal courts with life-time appointees who will be expected to block progressive reforms and resource reallocation for decades to come. The majority leader of the Senate, Mitch McConnell, has been the mastermind of this extremely successful and systematic campaign.

Unhealthy powers

The powers of the US Supreme Court are unhealthy for democracy. Nine justices appointed for life, quite often literally until their last breath, in many respects replace periodically elected legislatures in deciding on public affairs. Liberal critics such as professors Ryan Doefler and Samuel Moyn are right in insisting that the actual solution is not court-packing but the dismantling of the powers of the Supreme Court.

The elections of 3 November may very well entail a landslide of votes cast for the Democrats, as they have become a referendum about the catastrophic way President Trump has run the country for almost four years. Despite all the populist posturing and the repetition of divisive misinformation and disinformation campaigns that in 2016 secured Trump a clear majority in the Electoral College despite losing the popular vote by three million ballots, his cynical and irrational handling of the COVID-19 epidemic has turned the tide.

That is, if all the ballots are counted, which is another matter altogether. How a perfect storm ends is unpredictable. It may turn worse, or it may fade away. The uncomfortable truth is that the United States never became a democracy in which the population was wholly trusted and empowered to decide. Voter disenfranchisement and suppression, gerrymandering of the constituencies and the mismatch between the composition of the Electoral College or the Senate and actual demographics, have resulted in a high degree of protection for acquired privileges of some and the exclusion or marginalisation of many others.

The 2020 situation is unique, and throws the extraordinary and unhealthy powers of the US Supreme Court into high relief. Trump’s last-minute appointee for the Supreme Court, Amy Coney Barrett, may well cast the deciding vote on whether democracy and the rule of law will die in America. While there most likely will be a solid Democratic majority in both houses of Congress, the Supreme Court may hand Trump his re-election, probably with an unprecedentedly low share of the ballots cast.

Were the legacy to continue

Trump and the Republican-led Senate under his administration will not be remembered for legislative reforms or US initiatives to solve global problems. Rather, their legacy in the field of legislation will be the dismantling of the work of Obama and a line of his predecessors. As to global problems such as climate change or armed conflict and terrorism, probably no US administration has done worse. And when it comes to resource allocation, the favouring of the richest through tax benefits and public contracts has reached a new peak. The mask of populism covers the true face of a kleptocracy.

A second term for Trump could only destroy what is left of the rule of law and democracy in the United States. The public administration will be further weaponized to the shielding of crimes committed by Trump and his enablers, to the prosecution of political opponents, and to the continued profit of Trump and his kleptocratic cronies.

Thanks to the peculiar power allotted to the US Supreme Court, this future may well be decided by the last political appointee of Donald Trump’s 2016-2020 mandate.


Martin Scheinin is part-time professor at the European University Institute and British Academy Global Professor at the University of Oxford