Democracy Hypocrisy

Democracy scholars have established that democracies can turn into authoritarian regimes when autocratic leaders or factions hijack the structures of constitutional democracy, often while claiming meticulous fidelity to constitutional structures and democratic processes. As Kim Lane Scheppele argues, this kind of “autocratic legalism” can facilitate the transition from a functioning democracy to authoritarianism. This essay argues that the Supreme Court is engaged in exactly that kind of dangerous legalism. The Court, particularly in opinions by the conservative ustices, justifies many decisions by invoking democratic values, even as it is regularly consolidating power in itself or in an increasingly unaccountable unitary executive. At the same time, as is well-documented, the Court regularly issues opinions that undermine actual democratic functioning. But as this essay also notes, even when the Court issues pro-democracy rulings, as it did in the spring of 2023, it abandons the pro-democracy rhetoric that is so prevalent in other contexts. This lack of pro-democracy talk in pro-democracy cases is a kind of democracy hypocrisy, and it suggests that the danger of the Court’s facilitation of autocratic legalism remains real.