The Erosion of Judicial Neutrality: How the Supreme Court’s Political Shift is Reshaping American Democracy
“Remember democracy never lasts long. It soon wastes exhaustion and murders itself. There never was a democracy yet, that did not commit suicide.”
— John Adams, letter to John Taylor, December 17, 1814
As of January 20th, the United States dropped to a zero on the Polity IV scale. Therefore, the nation is no longer considered a democracy by Polity IV’s standards. To some, America’s new rating is a complete shock, while others may believe that warning signs have been coming for years. However, this ranking is not the end-all be-all, and it is essential to consider different measures of democracy. While the federal government may be straying from what the founding fathers intended, the U.S. maintains its position to (mostly) execute free and fair elections, peaceful transfers of power, and implement civil liberties. Judicial neutrality is essential in maintaining a healthy democracy; at all scales, a partial judiciary is reflective of democratic backsliding.
Historical Background
The Supreme Court was intended to be a government branch independent of politics and legislation—they are only responsible for interpreting the law. However, in recent years, the Supreme Court has taken on a more political stance, entering the policy-making field and now altering the trajectory of American democracy. Democracy itself is challenging to define—while it involves government being run by the people, democracy also requires liberties, freedoms, and limits on leaders’ powers. The Supreme Court has been deviating from what the founding fathers intended since the effective undoing of Marbury v. Madison (1803) in Ortiz v. United States (2018). Marbury v. Madison upheld judicial review and the doctrine of political questions, which was later refined in Baker v. Carr (1962), stating that the courts must refrain from intervening in political questions. In 1962, the Warren Court issued its landmark decision in Baker v. Carr. This case surrounded a Tennessee suburb whose district had not been redrawn since 1900, giving the high court substantially more power. An inherently political decision, Baker argued that districts needed to be redrawn for equal representation. While the opinion stated that this case required them to make a political decision, the dissent predicted the inevitable: “The court's authority possessed of neither the purse nor the sword- ultimately rests on the public confidence in its moral sanction. Such a feeling must be nourished….” Simply put, the rule of law has eroded over the past century, but its decline has been particularly pronounced in this new era of judicial politics.
Today, we see the consequences. Cases such as TransUnion LLC v. Ramirez and Dobbs v. Jackson, among many others, result from a politicized Supreme Court and the overreach of federal powers. The Supreme Court took control of the federal government last year, overturning the Chevron decision. The 1984 decision shows that Chevron deference granted the federal government increased power to regulate environmental protections, public health, workplace safety, and consumer protection. In 2024, the conservative-leaning Supreme Court overturned this law, weakening regulatory foundations and avoiding social issues, as seen in Loper Bright Enterprises v. Raimondo (2024). Here, the Supreme Court granted itself increased power by limiting the authority of Congress and the President to implement regulations
July 1, 2024, marked a significant turning point in American democracy; it was the day when the Supreme Court gave a person more power than the rule of law. The Supreme Court held that “Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” As long as the act is considered official, the president is exempt from prosecution of all crimes. The majority opinion quoted Article 2 of the Constitution, saying that the President has duties of “unrivaled gravity and breadth,” not only deciding in favor of the President but setting a precedent for years to come. Furthermore, the President is free of the law while in office. This move is intended to ensure the President can act in favor of the American people without fear of repercussions, but it leaves significant room for the opposite. It puts a greater risk to the American public to establish an individual as immune. This case also reflected to the American public the significant impact of a partial judiciary, one that takes politics into its own hands, and one that can change the trajectory of American democracy for years to come.
What do these scores tell us?
The World Population Review’s Democracy-Dictatorship score, or “DD,” looks primarily at the election process. A nation can only be a democracy under four conditions: the chief executive is elected, the legislature is elected, there is more than one party competing in the election, and the alternation of power occurs under identical rules. The last rule is fundamental, as it provides a level of validity– the elections in democratic societies include a transfer of power to a new individual; elections are for more than just show. Under this framework, the U.S. is still a democracy.
Freedom House, an NGO, provides a measure independent of democracy but is often used in conjunction with a democratic scale. It provides a “global freedom” measure by asking questions related to political and civil rights. Freedom House looks at the outcome as a substantive measure. It emphasizes the electoral process, political pluralism, participation, freedom (including expression of belief, association, organizational rights, rule of law, personal autonomy, and individual rights). It ensures the government's functioning. Freedom House ranked the U.S. 83rd out of 100 in global freedom and 76th out of 100 in Internet freedom. However, they did warn that voters “recommit” to democratic values after another “Trump victory.”
Lastly, Polity IV provides a minimalist and procedural measure of democracy. Polity relies on the competitiveness of executive recruitment, the openness of executive recruitment, constraints on the executive, regulation of political participation, and the competitiveness of political participation. They measure scores, ranking them 0-10, subtracting their autocracy score from their democracy score to receive their policy score. Scores between -10 and -6 are considered autocracies. Scores between 6 and 10 are considered democracies. Scores between -5 and 5 are mixed, with the U.S. being right at the center—a nondemocracy. The U.S. had not received a Polity score so low since 1789, when the U.S. did not have a Bill of Rights.
What does this mean for America?
While one score may not be significant, these decreasing scores should serve as a wake-up call for individuals who take their civic duty seriously. The POLITY IV metric does not look deeply into systemic implementation; it only analyzes what exists in the law. Interestingly, a lot of the scores contradict each other. Democracy is a complex system with numerous nuanced aspects, including civil liberties and power transitions.
Civil liberties are an essential aspect of Democracy. Civil liberties include freedom of the press, religion, assembly, political opinion and thought, trial by jury, equal protection under the law, self-determination, and much more. Luckily for the U.S., these rights are baked into the U.S. Constitution and Bill of Rights (although depending on what dataset you look at, the actual laws in the Bill of Rights do not matter.) Similarly, the alternation of power signifies a system in which people lose elections. Here, politicians enact a “democratic bargain,” an implicit agreement in which social groups accept that they may lose an election when making a policy decision. A nation where one individual remains in power for an extended period is not a democracy. The U.S. has term limits in place, and for the most part, it has gone through smooth transitions of power.
Levitsky warns of the four warning signs of democratic backsliding into authoritarianism. First, he notes the rejection of democratic norms and a decline in confidence in democratic standards, as evident in the Chevron deference. Next, leadership will deny the legitimacy of political opponents, utilizing the judicial branch to pass laws that allow ultimate power. The leader will also tolerate or even encourage violence, as seen in the January 6 attack on the Capitol. Lastly, the leader will curtail the civil liberties of opponents, especially the media. The judicial branch is the most effective way to pass laws that set precedents about limits to personal freedoms, as it has the power to alter the Constitution, which grants people civil liberties. Then, once the four steps are completed, the leader can reconstitute the executive branch, thereby granting himself total power.
While there is evidence on all measures of democracy that America may be at risk, and according to Levitsky's model, the process has already begun. However, there is one final avenue that the leadership cannot reach: the people. The people, the voters, are the final protection against tyranny.