Here's what you need to know about democracy this week:
1. Biden Creates Commission to Examine Court Reform
2. Democracy Falters the World Over. What Can America Do?
Biden Creates Commission to Examine Court Reform
FDR tried it in 1937. Will President Biden? / Credit: AP Photo via Harvard Law
On Friday, April 9th, the Biden Administration announced that it would establish a 36-member, bipartisan commission to study reforming the Supreme Court, including the politically contentious issues of “court packing,” instituting term limits for justices, and more. The Commission will research and hold public hearings on these issues before issuing a report on them in six months.
The group of scholars on the Commission is arguably well-balanced, representing those on both sides of the aisle within the legal establishment. It will be headed by former Obama justice officials Bob Bauer and Cristina Rodriguez and include prominent legal scholars across the political spectrum, from former RDI Board member Laurence Tribe to Harvard Law professor Jack Goldsmith. The picks have won praise from many moderates and even members of the textualist Federalist Society, though they’ve also received criticism from some partisans: the Wall Street Journal’s editorial board panned the roster for “tilt[ing] markedly… left,” while some progressives are disappointed that leading Court expansion advocates were not included.
Many commentators contend that the Commission’s “milquetoast” membership means Biden is not interested in “packing the Court.” Rather, they speculate the Commission is an attempt to mollify the many Democrats still angry over what they believe to be a stolen Supreme Court seat. They contend that Senate Republicans exhibited a double standard in refusing to give Obama nominee Merrick Garland a hearing while confirming Justice Barrett, despite the fact she was nominated five weeks before the 2020 election. Many progressives are also anxious about the Court’s ostensible 6-3 conservative majority, which many on the left consider a danger to their values.
Should we pack the Court?
No. It was a bad idea when FDR proposed doing so in 1937, and it still is for two main reasons.
First, it would erode the public’s trust in the legitimacy of the Court. This public trust is pivotal in ensuring that the American people respect the decisions of nine unelected judges who review cases of profound public importance. As Justice Breyer explained in a speech to Harvard Law School last week, the Court’s authority depends on “a trust that the Court is guided by legal principle, not politics.” However, as the late Justice Ginsburg commented in a 2019 interview, “if anything would make the Court appear partisan, it would be” packing it for political advantage.
Expansion advocates and “legal realists” may respond that the Court is already partisan—they point to Bush v. Gore, or Citizens United v. FEC, or the controversial confirmation of Justice Kavanaugh and the Garland-Barrett debacle. However, this discourse is not representative of the broader conversation. Among the American public, the Supreme Court remains fairly popular (far more so than Congress). Only one-third of Americans support expanding the court. Even FDR with his decisive mandate could not convince the public to support court expansion; it's doubtful President Biden will.
Second, as we warned last month about abolishing the filibuster, “rolling back institutional guardrails should not be taken lightly. Thinly-veiled partisan power plays risk precipitating a dangerous cycle of tit-for-tat destruction of constraints,” one that would be especially detrimental for the judicial system. Such a move could yield short-term benefits for Democrats, but ultimately could corrupt the institution whose very purpose is to serve as a check on the political branches. This doesn’t mean that the judicial system should never be reformed, but rather, it means that institutional reforms should avoid even the appearance of being pursued for political advantage.
What should we do?
The popular proposal to appoint justices to uniform, 18-year terms, rather than giving them life tenure seems far more reasonable. While this might (ostensibly) require a constitutional amendment and expanding the Court would not (life tenure is enshrined in the Constitution, a nine-justice Court is not), it is nonetheless promising for several reasons. (Notably, some proposals recommend rotating justices who have served their 18-year term onto lower appellate courts, which could circumvent the requirement of a constitutional amendment.)
First, it’s fair. The terms could be staggered so that each President nominates a new justice every two years (e.g. on odd-numbered years), and thus a roughly equal number are appointed per term. Such consistency is an improvement over the bizarre status quo in which a President’s influence depends on how many justices happen to die or resign during their administration. The reform enjoys broad bipartisan support, indicating the public likely agrees: 66 percent of Democrats, 74 percent of Republicans, and 80 percent of Tea Party conservatives support 10-year term limits (support for 18-year terms is likely similar).
Second, if nominations were to occur at predictable intervals, this new system could reduce partisan bickering and stonewalling. Even if the minority party were faced with a particularly ideological nominee, their base would know that they will have a chance to appoint more justices soon enough, taking some of the urgency out of each individual appointment.
To be sure, there are outstanding issues: even with term limits, the Senate-majority party could still block a President’s allotted appointments (although such tactics would be less politically palatable than they are now). Nonetheless, as Berkeley Professor Orin Kerr articulates, it’s still worth a try: “If the Supreme Court is going to have an ideological direction—which, for better or worse, history suggests it will—it is better to have that direction hinge on a more democratically accountable basis than the health of one or two octogenarians.”
Researching and debating these issues is not a bad proposition. Politically pressuring an apolitical branch is. Judicial reform can be forged through consensus, or imposed through partisan strong-arming: the importance of the choice between the two to the health of our democracy cannot be overstated.
Democracy Falters the World Over. What Can America Do?
The 2020 Democracy Index, computed by The Economist’s Intelligence Unit. / Credit: The Economist/Jackinthebox via The Conversation.
We are witnessing the beginning of a new era—one that could see the decline of democracy around the world for a generation, or even more.
Coups and unrest in Myanmar, Haiti, and Niger. Backsliding in more established democracies like Turkey, Poland, and Hungary. These countries are no anomalies: Freedom House recently found that nearly 75 percent of the world’s population lost democratic freedoms in 2020. Further complicating the picture are regimes like China and Russia, which have attempted to undermine elections and destabilize democracies across Asia, Africa, Europe, and even in the US.
Can America stop this pernicious backsliding? And should we?
Critics argue that those in glass houses shouldn’t throw stones. Is America capable of promoting democracy abroad as our own democracy still reels from an attempted insurrection on January 6th? And even if we can, should we really be spending taxpayer dollars on those halfway across the globe during a once-in-a-century pandemic?
The answer is that promoting democracy isn’t just about “doing the right thing.” Preventing the spread of authoritarianism is and has always been both an altruistic goal and one deeply rooted in our self-interest. Think about the Marshall Plan or our support for the institutions of the post-World War II order, from NATO to the World Trade Organization (WTO). Some of the largest democracy promotion projects in U.S history were also fundamental to securing our own success and security. America cannot prosper in a world ruled by autocrats and dictators.
Should foreign aid be part of the solution?
Research suggests that aid can play a pivotal role in spreading civil liberties. A new literature review analyzing 32 different studies on aid directed towards democracy promotion found “a considerable volume of evidence” that it is effective at promoting democratization (of the 15 investigating American democracy aid, two-thirds found it effective). Another oft-cited study analyzed American aid targeted towards democratization objectives from 1990 to 2003 and found that, all else being equal, giving an additional $10 million (in 1995 dollars, about $17.4 million today) to a country caused “about a five-fold increase in the amount of democratic change.”
Although observers are right to be concerned about the opportunity cost of aid, it is important to note that the U.S. government consistently spends less than one percent of its budget on aid (and a mere 0.2 percent on aid targeted to promote democracy). Members of the public typically overestimate this amount more than tenfold, and opposition plummets when they’re told how much the government actually spends. It’s a small investment that helps us reap big returns.
What’s the best way to give?
Not all types of aid are created equal. In particular, there are three ways to ensure that America promotes democracy most effectively:
First, give with the specific intention of promoting democracy. The recent literature review found that the “best democratic returns” can be achieved when investing directly in human rights, democratic participation, civil society, and especially a free media. With this approach, USAID has made significant achievements in several countries: in Kyrgyzstan, it supported media institutions and ensured access to information before elections. In Jordan, it helped modernize and strengthen the judiciary.
Second, give consistently with the aim of supporting ongoing democratization. Studies have shown that aid is more effective at fanning the flames of existing reform than it is at lighting the initial spark, and that abruptly stopping aid can often lead to backsliding. We have seen examples of this in Latin America and Eastern and Central Europe, where a decrease in assistance in recent years has been accompanied by a rise in authoritarian leaders and a decline in civil liberties.
Third, give smart “technical assistance.” Aid in this form means a donor provides the recipient nation with skilled professionals who can use their expertise to improve policy (and its implementation) in nations where qualified officials are often in short supply. Oxford Professor Paul Collier has found that in the precarious years directly following large, sustained improvements in governance, every $1 of technical assistance can produce as much as $15 worth of benefits.
Is foreign aid enough?
Of course not.
As we witness the longest and most serious democratic decline in decades, America must double down on all possible solutions, including thinking of new ones. One creative idea is a Summit for Democracy, proposed by the Biden Administration and supported by RDI board member Alexander Vindman. The Summit could bring like-minded leaders together to discuss strategies in the fight against authoritarianism and common threats democratic nations face, including polarization, growing inequality, and misinformation. Such a summit could also include a “call to action” for technological companies that have become vessels for “anti-democratic disinformation.” As Vindman emphasizes, the only way to prevent the continued rise of illiberalism is for the free world to unite.
Yet ultimately, the U.S. must lead by example, standing up to dictators like Russia’s Putin, China’s Xi, and Turkey’s Erdogan when they violate human rights, invade their neighbors, and interfere in foreign elections. And, importantly, leading by example means repairing our democracy at home. That is the only way we can effectively model freedom to the world, inspiring activists, politicians, dissidents, and civil society leaders to fight for democracy in their own countries. We cannot understate the power of this kind of foreign aid.