When I wrote a book about “illiberal democracy” 15 years ago, I noted that the United States was not immune to the dangers of populism that could erode liberal democracy. What had saved the country were the many checks and balances on pure majority rule, including the Bill of Rights, the Senate and the judicial system. At some level, the public seemed to understand and appreciate the role of these stabilizing elements that were governed by an internal code, not always responsive to what majorities demanded. I was struck that, in surveys, the three governmental institutions that commanded the most respect were all fundamentally non-democratic: the armed forces, the Federal Reserve and the Supreme Court. Of these, the Supreme Court was perhaps the most important because it is, in many ways, the ultimate arbiter of American democracy — the final decision-maker.
The reason a democratic public admires these non-democratic institutions is not so mysterious. Aristotle believed that the best political system was a mixed regime, one that had aspects of democracy but also gained stability from some bodies that, rather than pandering to public sentiment, took a longer view and obeyed a higher set of values (such as the preservation of liberty). These kinds of institutions — rooted in history, law, technical expertise — were explicitly shielded from the short-term winds of public opinion and served as pillars for a functional democracy.
Over the years, such institutions in the United States have faced ferocious challenges. Two long wars, in Iraq and Afghanistan, have tested the reputation of the military. The speculative bubbles that led to the global financial crisis made many question the vaunted wisdom of the Fed. But both institutions have weathered those storms, perhaps because they were viewed to be genuinely trying their best and functioning as intended. Whatever mistakes they made were honest errors, often corrected. Neither institution is infallible, but both were seen as trying to fulfill the roles expected of them by society.
The same cannot be said of the Supreme Court. Perhaps it began in 2000 with the highly political case of Bush v. Gore, in which conservatives on the court suddenly abandoned their long-standing principle of deference to states’ rights and voted in a nakedly partisan fashion. Some would date it further back to 1987, when the left mounted a fierce campaign against Robert H. Bork and derailed his Supreme Court nomination. Whatever the best starting date, the court has lost its reputation of impartiality and trustworthiness, so much that FiveThirtyEight says that “it’s in a weaker position now than at nearly any point in modern history.” Over the past several decades, Americans’ confidence in the court has gone from a peak of 56 percent in the 1980s to 37 percent today. It is likely to go even lower after the whole Kavanaugh mess.
Both parties are to blame for this descent, but as in most of the discussion of the rise of partisanship and polarization, studies confirm what is apparent to any rational observer: The Republican Party, especially after the “Republican revolution” of 1994, is by far the prime mover. It shifted further to the right, initiated the tactics of treating political opponents as traitors and actively encouraged the incendiary language that now dominates our discourse. Senate Majority Leader Mitch McConnell’s (R-Ky.) refusal in 2016 to fulfill his constitutional obligation to give Judge Merrick Garland consideration for the Supreme Court was simply the most egregious example of a strategy that had been pursued for years. The Democrats have responded by mirroring these Republican tactics. Politicians don’t practice unilateral disarmament.
The American democratic system is designed to require compromise. No one controls multiple levers of government, as in a parliamentary system. The British prime minister simultaneously leads the executive branch and commands a majority in the legislative branch. But in the United States, the system is meant to have many different sources of power and legitimacy, all sharing in the functions of government.
For American democracy to work, all of the elements — the three branches of government, the political parties, the states and the center — must find a way to work together. And part of what makes this kind of cooperation possible is the sense that there are some institutions, rules and norms that cannot be thrown into the maelstrom of party politics. Some facets of the system must stay focused on the country as a whole, on its long-term viability, on its core values as a constitutional republic. And chief among those institutions is the Supreme Court. Or was.