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Home > ULR > Vol. 2024 > No. 2

 

Abstract

For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United States?

This Article is the first to employ its novel approach to the examination of democratic erosion in the United States by adopting a comprehensive method from the comparative politics literature. Through identification of four key areas for studies of democratic erosion— electoral rules, executive aggrandizement, income inequality, and speech rights—and an examination of how the Supreme Court has intervened in each area between the 2016 and 2022 terms, this Article provides a new perspective on the Court’s role in democratic erosion. The key question for this project is thus empirical, not doctrinal. What has the Court done when it has confronted issues central to democratic erosion?

Part I of the Article provides a brief survey of the comparative politics literature to identify the categories that will guide the analysis of Supreme Court caselaw. Part II of the Article examines the opinions in each category—sixty-four cases—with a focus on the Court’s impact on erosion. This snapshot of Supreme Court intervention in areas that are crucial to democratic stability is a worrisome one. Though the wide range of cases examined permits room for much nuance, generally speaking, the Article finds the Court abets democratic erosion more than democratic stability.

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