Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2022

Publication Title

Syracuse Law Review

Abstract

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic order itself; the latter to independent actors seeded through the administrative state (like election monitors, ombudsmen, and inspectors general) to prevent the politicization of the rule of law.

Within the American legal academy, the debate over “militant” or “intolerant” democracy is now vibrant, a stunning reversal of Americans’ long-held faith in the stability of their institutions. Yet the debate is unfolding in a characteristically American way: American militant democracy is still conceived of primarily in terms of judicial, as opposed to bureaucratic, solutions—to echo Damaska’s famous formulation, through coordinate and not hierarchical modes of authority.

This paper argues that America’s militant democracy regime is doomed to remain inchoate and weak unless it supplements judicial review with deeper institutional reforms in the bureaucratic mode. The judicial remedy is necessary to arrest constitutional decline, but it is insufficient. This is because, at early stages of decline, politicization of the rule of law tends to proceed in procedurally “lawful” ways, and judges lack substantive criteria for what constitutes unacceptable politicization. At late stages, courts themselves become politicized or coopted, leaving them ill-equipped to reverse rule-of-law decline once it has proceeded. The American judiciary has long been celebrated for its independence, but that status is increasingly imperiled by the ongoing politicization of appointments, a symptom of early-stage decline. This article concludes with an exploration of how the bureaucratic remedy could be applied in the American case.

Keywords

Judicial Review, Constitutional Law, Supreme Court, Democracy, Bureaucratic Independence

Publication Citation

Andrea Scoseria Katz, Defending the Defenders: Why Bureaucratic Independence Is a Necessary Supplement to Judicial Defense of Democracy The Specter of Dictatorship: Judicial Enabling of Presidential Power, 72 Syracuse L. Rev. 1497 (2022)

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