American politics has a long tradition of resolution through adjudication. There is a fear the 2020 Presidential Election will be resolved in the courts rather than the voting booth. The appointment of Amy Coney Barrett to the Supreme Court left “the left” on edge before the election formally began. There is a fear the Presidential election will be decided through the least democratic branch of American government. Of course, the threats of incumbent President Donald Trump have not helped. He seems to believe his appointments to the court ought to allow him to weaponize the law. Whether his advantage in the courts is real or imagined, it does not help to subdue fears of the public that the system will be manipulated.
I have chosen not to write about American politics this week. I do not believe the study of American politics helps clarify the political moment in which we live. Rather I have looked to a subfield of comparative politics to better reflect on the role of the courts in democracies. Tom Ginsburg has been at the forefront of scholarship surrounding the comparative study of courts, judicial review, and constitutionalism. He is not alone. A few years ago, he cowrote How to Save a Constitutional Democracy with Aziz Huq. But other scholars in this area also include Rosalind Dixon, Samuel Issacharoff, and David Landau. Their work is often found in law journals, so it is sometimes ignored in the study of comparative politics.
Tom Ginsburg straddles the line between the study of law and political science. He teaches both disciplines at the University of Chicago. The difference between Ginsburg and some of his contemporaries is his ability to move seamlessly between these two academic approaches. His first book Judicial Review in New Democracies reads like a work of political science, but some of his most influential publications have been in law reviews. Indeed, he thinks like a political scientist. Rather than focusing on the meaning of the law, he looks to the broader political context in the behavior of the courts. For instance, he understands “courts are constrained by the positions of other political actors.”
There is an implicit division in the book between general theory and his case studies. He uses a general theory to set the stage for an analysis of his specific cases. The full title of the book is Judicial Review in New Democracies: Constitutional Courts in Asian Cases. The subtitle gives the impression the focus of the book is on Asia, but only the second half of the book focuses on three specific Asian cases. The first half explores the role of judicial review within democracies. I do not get the impression Ginsburg believes these are new ideas, but most readers of comparative politics will be surprised at how much of this scholarship and theory is new to them.
Asia is often imagined as hostile to democracy because of its Confucian traditions and culture. China has long emphasized Western Democracy is incompatible with its historical traditions. Yet East Asia is surprisingly democratic. Japan, South Korea, Mongolia, and Taiwan have managed democratic governance successfully for decades. Indeed, as democracy suffers a recession or an autocratic resurgence, these countries have been largely immune so far. Southeast Asia has had a complicated history in the implementation of democratic institutions, but the East Asian region has been to all accounts successful. The only holdouts have been China and North Korea. There are always challenges to the successful implementation of democratic governance, but culture and tradition have not been obstacles.
Ginsburg focused on three countries (South Korea, Mongolia, and Taiwan) where democratic governance was new. It will help to remember this book was published in 2003. The constitutional courts were fragile institutions just like the wider democratic regime itself. Ginsburg gives perspective through a reminder of America’s own perilous journey of its judicial institutions, “We risk forgetting the great threats that the court was under at particular moments in U.S. history and the strategic caution that allowed the court to survive as an institution.” The challenge for new democracies is they face the same threats, but also have pressure to reflect the more confident courts of established, mature democracies. Ginsburg gives many examples where the courts overreached and threatened their legitimacy, but others where they retreated, “living to fight another day.”
The first few chapters place judicial review within the context of democratic theory. Some scholars like Yascha Mounk have criticized the expansion of the power of the courts as undemocratic. The rise of populism is portrayed as a rebellion against technocratic institutions. From this perspective, the solution to populism is to shift power from the courts and bureaucracy to majoritarian institutions where popular opinion has greater influence. Yet Ginsburg finds “it is typical that the exercise of judicial review and the importance of judicial power expands with democratization.” Mounk has referred to this phenomenon as undemocratic liberalism, but like Sheri Berman, Ginsburg finds liberalism and democracy are interrelated.
The more recent work from Tom Ginsburg (and Aziz Huq) focuses on how unelected stakeholders often preserve democracy in moments of crisis. They described these events as “Democracy’s Near Misses.” But in this earlier work, Ginsburg explains the role of courts in the process of democratization, “New democracies are frequently fragile creatures without consensus on basic norms of governance… There are many pressures against nascent norms of constitutionalism… Judicial review can play a key role in consolidating democracy and enhancing political stability.”
Democracy does not simply depend on the support of the majority. It depends on overwhelming support in the political culture. It is this overwhelming support which allows it to weather crises of governance. Ginsburg emphasizes “judicial review invites a process of dialogue that will clarify the boundaries of political activity.” The courts are often frustrating because they have the potential to undermine majority rule, but it is the potential for minorities to claim victories through the courts which allows democracy to retain support among those out of power. Ginsburg emphasizes, “By serving as a countermajoritarian institution, judicial review can ensure that minorities remain part of the system, bolster legitimacy, and save democracy from itself.”
Conservatives in the United States have likely claimed the Supreme Court for a generation. But these victories often signal a last gasp before political power makes a dramatic shift. John Marshall’s long tenure as Chief Justice began as the last meaningful action of John Adams as President. The midnight appointments gave Federalists influence in the courts as the Democratic-Republicans took political power for a generation. The Dredd Scott decision was the culmination of slave power in the courts, but it foreshadowed the inevitable rise of the Republican Party and the emergence of abolitionism as a political force. The Warren Court was a consequence of the liberalism brought to the surface during the New Deal, but the liberalism of the court became a rallying cry for the emergence of movement conservatism beginning with Barry Goldwater and finding its greatest champion in Ronald Reagan.
The liberalism of the court has been over for some time. Amy Coney Barrett simply solidifies a reality that has been long established. But it will probably mark the beginning of a liberal backlash which will build over time. The Supreme Court has a history of providing energy and momentum for political movements. Abolitionism became mainstream in the North a few years after the Dredd Scott decision. The Pro-Life movement gained momentum after Roe v. Wade. Ginsburg recognizes the court is not simply influenced by its political environment but is also a vehicle for politics. A conservative Supreme Court will likely shape the way politics is discussed and interpreted over the next generation. But rather than give legitimacy to conservative opinions, it is likely to give liberals greater influence in representative institutions as voters seek a counterweight to the courts. The shift in the court reflects a desperation from conservatives, but it will likely exacerbate a shift in political opinion as a counterweight to unpopular judicial decisions.
I know there is a fear among the left that democracy will be stolen by a conservative judiciary. Ginsburg offers some consolation. He reminds us that “most judges follow the law most of the time.” It is important to give those left outside power some possibility for success. It is this hope that allows for democratic consolidation. Despite any mistakes the court will inevitably make “judicial review reflects democratization and is not antidemocratic.” The 2020 Presidential Election appears to have been a small victory for the Democratic Party. It feels like a close election, but the popular vote shows overwhelming support for the left. It is my expectation this support will grow over subsequent elections. It may feel as though Republicans have rigged the system against the will of the majority, but there is hope on the horizon. It is not dark yet.