Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2022

Publication Title

Drake 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 proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or the democratic order itself. In this Article, I explore a different approach, what I call the bureaucratic remedy, in which independent actors are seeded through the administrative state to prevent the politicization of the rule of law. This includes officials like election monitors, ombudsmen, public prosecutors, and inspectors general.

Within the American legal academy, the debate over the future of American democracy is now vibrant, a stunning reversal of Americans’ long held faith in their institutions. Yet, as this Article argues, America’s defenses against democratic backsliding are likely to remain weak unless suggestions like norm following, election reform, and judicial review are supplemented with deeper institutional reforms to the civil service. The reason is that, as scholars have shown, backsliding almost always begins with a takeover of the civil service. Norms and state-level electoral reforms cannot change this, and courts, however important, often lack capacity to stop backsliding for two reasons. In the early stages, backsliding takes place in procedurally “lawful” ways, and judges usually 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. Preventing politicization of the civil service before it begins helps make sure that, in being responsive to the presidency, government does not cease to be responsive to the rule of law.

Keywords

Populism, Civic Norms, Democracy, Guardrails Rule of Law, Judiciary, Supreme Court, Judicial Intervention

Publication Citation

Andrea Scoseria Katz, Revisiting America’s Guardrails The Constitution and Democratic Erosion Symposium, 70 Drake L. Rev. 577 (2022)

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