Note: This post is wonky and TL/DR for some people. It explains what I see as a major shift in America's rule of law from mostly democratic and moderately corrupt to mostly authoritarian and truly kleptocratic. This post has been on my mind since the end of the supreme court term on July 1, 2024.
CONTEXT
In my opinion, decisions in some important court cases over the last ~25 years have generally tended to weaken democracy and public interest power, while strengthening radical right authoritarianism and special interest power. There have been significant exceptions, e.g., (i) the 2015 5-4 USSC decision that recognized a right to same-sex marriage, and (ii) overturning the very bad precedent in Korematsu v. United States, a 1944 decision that allowed the internment of Japanese Americans during World War II.
Since ~2005, trending radical right authoritarianism has significantly increased the flow of power from the public to various special interests. That has been especially true of USSC decisions. Of course, that may have been a minority opinion, especially before 2017 when DJT gained power.
In the last election, a lot of Americans were concerned to variable extents about the thereat of radical left or radical right tyranny. But on the other hand, a lot seem to be sympathetic to authoritarianism. Data from one survey indicated that about four in ten Americans are susceptible to authoritarian appeals, with this number rising to two-thirds among Republicans and white evangelical Protestants. That indicates more support on the political right for authoritarianism than on the left. About 41% of Americans think "having a strong leader who does not have to bother with parliament or elections" is a very good or fairly good system, with slightly more support among men and higher earners. Support for theocracy led by religious leaders was about 34%, while army rule received similar support at 33%.
The 2024 election results (not paywalled) suggested that about a third of voters viewed American democracy as the determining factor in their vote choice. Maybe due to repeated warnings from Democrats and others about Donald Trump’s embrace of authoritarians and authoritarian tactics, those voters backed Vice President Harris by a 4-to-1 margin.
Failing to see the flow of power and its threat
“In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.” -- Ed Levy, former US attorney general, 1949 from his short book, Introduction to Legal Reasoning (emphasis added)
A prominent legal analyst, Dan Abrams doesn't see authoritarianism in the current USSC. He sees the court as principled and conservative, especially for chief justice John Roberts. He rejects arguments that when the current court disregards precedent, it is no different than when the Warren court, 1953-1969, disregarded precedents in its time.
Being a big fan of the legal doctrine called American Legal Realism, Abrams' reasoning instantly raised doubts and questions about the equivalence of the Warren vs the Roberts courts. I suspected little equivalence. That is because my understanding is that the Warren court was pro-democracy and civil liberties, while Roberts' court is the opposite. From the perspective of the political and social power, and where and how it flows, I instantly suspected I would be in major disagreement with Abrams on this critically important legal issue.
It is true that the Warren court overturned a number of important precedents, just like the current Roberts USSC has done. So what are the precedents that Warren obliterated? From the point of view of power and how it flows when a precedent is established or overturned, Warren overturned anti-democracy and anti-civil liberties precedents. Power flowed from states and special interests to the people or the USSC itself. Here are some examples:
- Brown v. Board of Education (1954) - This case overturned the "separate but equal" doctrine established by Plessy v. Ferguson (1896). The Warren Court ruled that segregation in public schools was unconstitutional, stating that "separate educational facilities are inherently unequal." Power flowed to minorities that had been discriminated against.
- Mapp v. Ohio (1961) - This decision extended the exclusionary rule to the states, overturning the precedent set by Wolf v. Colorado (1949), which had allowed states to use evidence obtained in violation of the Fourth Amendment. This decision protected an individual's right to privacy, draining some power from the states and law enforcement.
- Gideon v. Wainwright (1963) - Here, the Warren Court overturned Betts v. Brady (1942), which had held that the right to counsel was not fundamental and could be denied in non-capital cases.
- Baker v. Carr (1962) - This case was crucial in the realm of voting rights and apportionment. It overturned the precedent set by Colegrove v. Green (1946), which had deemed issues of malapportionment in state legislatures as non-justiciable political questions. The Warren Court ruled that federal courts could intervene in state legislative apportionment disputes, leading to the "one person, one vote" principle in Reynolds v. Sims (1964).
- Griswold v. Connecticut (1965) - While not directly overturning a precedent, this case established a new constitutional right to privacy by interpreting the Bill of Rights, particularly the First, Third, Fourth, Fifth, and Ninth Amendments, as creating zones of privacy. This decision was pivotal in later cases like Roe v. Wade and Lawrence v. Texas, which expanded on the right to privacy.
- Cooper v. Aaron (1958) - This case reaffirmed the principle of judicial supremacy, overturning the notion that states could ignore Supreme Court decisions. It was a direct response to Arkansas Governor Orval Faubus's attempt to block the desegregation of Little Rock Central High School following Brown v. Board of Education. The Court unanimously declared that states are bound by Supreme Court decisions and cannot ignore them.
In all of those Warren court cases, power flow was democratic, and arguably pro-public interest in generally expanding civil liberties. What about the Roberts court (2005-present)?
- Loper Bright Enterprises v. Raimondo (2024) Decision: On June 28, 2024, the U.S. Supreme Court in a 6-3 straight party line vote, overruled the 40-year-old Chevron precedent established in Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984). This doctrine required courts to defer to federal agencies' reasonable interpretations of ambiguous statutes they administer. The reason for Chevron in the first place was that the courts are not experts in various regulated areas of the economy and experts in bureaucracies were better able to implement the will of congress and is sloppy, incoherent laws. This decision shifts vast power of statutory interpretation to the judiciary, eliminating the practice of judicial deference to agency interpretations. The court's incoherent reasoning justified the power shift by asserting a "public interest" in ensuring that the judiciary, rather than administrative agencies, interprets the law, thereby promoting accountability and clarity in regulation. This constitutes a massive shift of power from the public interest via regulatory agencies to special interests. Whenever a regulation is struck down power flows almost always flows to the newly de-regulated special interests. This court is hell-bent on killing as many business, environmental, consumer and worker and protections as it possibly can.
- Snyder v. United States (2024) - On June 26, 2024, the Supreme Court in a 6-3 straight party line vote ruled that the federal anti-bribery statute, 18 U.S.C. § 666, does not criminalize "gratuities" given to state and local officials after they have performed an official act. The Court clarified that only quid pro quo bribes, where something of value is given in exchange for an official act, are covered by this statute. This decision effectively gets rid of existing anti-bribery law. It fully legalizes the acceptance of bribes called "gratuities" by state and local officials for past actions. The court reasoned that that the federal bribery statute only criminalizes bribes and not gratuities, because it was in the "public interest" in "federalism" and "fair notice." This decision constitutes a massive shift of power away from the public interest in honest, transparent governance to wealthy individuals and businesses who essentially always advocate in their own interests, in as much secrecy as possible.
- Trump v. United States (2024) - On July 1, 2024, the Supreme Court, in a 6-3 straight party line vote ruled that former presidents have broad immunity from criminal prosecution for official acts taken while in office. This includes absolute immunity for acts within the president's core constitutional powers and presumptive immunity for other official acts. Evidence of crimes related to a president commanding the military, issuing pardons, vetoing legislation, overseeing foreign relations, managing immigration, and appointing judges can be shockingly corrupt, but all those crimes are absolutely never prosecutable. Any and all evidence related to such crimes cannot even be used in any criminal prosecution of a president. For other official acts, the president is entitled to "presumptive immunity" from criminal prosecution. This immunity covers actions within the "outer perimeter of his official responsibility" unless the prosecution can establish that a conviction would pose "no danger" of intrusion into the authority of the executive branch. The Court clarified that (i) courts cannot even consider the president's motives when determining whether an act was official or unofficial, and (ii) testimony or private records of the President or his advisers probing conduct for which the President is immune from prosecution may not even be admitted as evidence at trial. Chief Justice Roberts emphasized that allowing criminal charges against a former president could affect their decision-making while in office, thereby impacting the "public interest" in having a president who can act without undue caution. This ruling basically prevents prosecutors from using evidence of official acts to prove liability on any charge, even if those acts are immune from prosecution. This decision is blatantly authoritarian. This decision constitutes a massive shift in power from democracy and the rule of law to any form of kleptocratic dictatorship that a president chooses to engage in, including hybrid forms of authoritarianism such as a kleptocratic dictatorship heavily tinged with corrupt theocracy and/or corrupt oligarchy.
- Citizens United v. Federal Election Commission (2010) - The Supreme Court ruled 5-4 that laws preventing corporations and unions from using their general treasury funds for independent "electioneering communications" (political advertising) violated the First Amendment's guarantee of freedom of speech. That decision overturned precedents or laws in Section 203 of the Bipartisan Campaign Reform Act of 2002 and Section 441(b) of the Federal Election Campaign Act of 1971, at least some of two previous Supreme Court rulings: Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003). The court disingenuously argued that independent expenditures in campaigns do not give rise to corruption or the appearance of corruption, thus the government's interest in preventing corruption was not sufficient to justify limits on corporate political speech. The decision led to the creation of super PACs, which can accept unlimited contributions from corporations, unions, and other groups, significantly increasing the amount of money in politics, including a massive increase in "dark money" spending, where the sources of funds are not disclosed to the public, but are often funneled through super PACs or other nonprofit organizations. This decision constituted a massive shift of power away from the public interest in honest, transparent governance to wealthy individuals and businesses who essentially always advocate in their own interests, in as much secrecy as possible. The vast corruption this decision facilitated cannot be ignored.
- Shelby County v. Holder (2013) - This decision struck down Section 4(b) of the Voting Rights Act, which contained the coverage formula that determined which jurisdictions were subject to preclearance under Section 5. Power flowed from voters to state legislatures that wanted to minimize the voting power of blacks and other minorities. Here, power flowed from free and fair democratic elections to authoritarian state legislatures that want rigged elections.
- Burwell v. Hobby Lobby (2014) - The Court exempted closely held corporations from the Affordable Care Act's contraception mandate, citing the Religious Freedom Restoration Act. This decision effectively overturned the precedent that corporations could not assert religious rights. Power flowed from employees to corporations and theocratic-minded employers.
- Dobbs v. Jackson Women's Health Organization (2022) - This major decision overturned Roe v. Wade and Planned Parenthood v. Casey, ruling that the Constitution does not confer a right to abortion, thereby allowing states to regulate or ban abortion. This decision established a new precedent based on the new the premise that abortion rights were not "deeply rooted in the Nation’s history and traditions", whatever that means[1], at the time the Fourteenth Amendment was ratified. Power flowed from the people to elite Christian theocrats.
- New York State Rifle & Pistol Association v. Bruen (2022) - In another major decision, the Roberts Court struck down a New York handgun-licensing law, establishing a new precedent for evaluating gun restrictions. This test requires that any modern gun regulation must be consistent with the Nation’s history and tradition of gun regulations, whatever that means[1]. This decision replaced the previous two-step means-ends test with a requirement that the government show that gun control is consistent with historical traditions. America's gun ghastly violence situation has not improved. The Roberts court made things worse. Here, power flowed from governments ability to impose gun safety laws to protect the public. Power flowed to gun owners and the gun industry with its lobbyists.
I do not see much equivalence between the activist Warren court and the activist Roberts court. But is the Roberts court mostly conservative or is it mostly authoritarian? Obviously opinions differ. In cases with major implications for democracy, honest, transparent government, civil liberties, the public interest and/or the rule of law, I see Roberts as mostly authoritarian, maybe ~70% authoritarian and ~30% non-authoritarian. In my opinion, the issue of authoritarianism is not hypothetical. It is real, here and now.
How one sees all of this might mostly boil down to how one defines core concepts at the heart of the Roberts' decisions. Those core concepts include "democratic", "democracy", "public interest", "federalism", "authoritarian", "conservative", "corrupt", kleptocratic", "history and tradition", an "official act", "bribery", "gratuity", the "outer perimeter of a president's official responsibility", a president's "official act", a president's "unofficial act", etc. It is not surprising that when one looks at the core concepts in the Roberts court decisions, one finds that they are poorly defined and ambiguous. The concepts are subjective enough to easily accommodate the rise of one or more forms of kleptocratic dictatorship or authoritarianism.
For the law wonks, more relevant legal analysis is at this link.
Footnote:
1. Criticisms of the Roberts court history and traditions tests are devastating. They reveal the authoritarian intent behind them. First, the test is far more subjective than its proponents assert. The level of generality at which courts choose to define the relevant "history and tradition" significantly influences outcomes. That allows judges to pick and choose historical precedents that align with their policy preferences rather than providing a neutral constraint on judicial discretion. The test has also been criticized for perpetuating inequality by tying constitutional interpretation to historical practices from eras when women and people of color were excluded from lawmaking and modern civil liberties generally.
