Why Judges Can\u27t Save Democracy

This is a contribution to a symposium on David M. Driesen\u27s book, The Specter of Dictatorship (Stanford Press 2021), held at Syracuse University College of Law in the Fall of 2021. In his book, Driesen encourages judges to take an active role in preserving American democracy, not only by checking presidents with despotic tendencies, but also by restoring the Constitution as originally designed. I make several points related to why we should be modest about predicting the capacity of judges to constrain a president who is bent on breaking legal limits and busting valuable political norms. First, whether constitutional adaptations to the expansion of presidential power are illegitimate or worthy of acceptance remains highly contested given our sparsely written constitution and aging political order. For instance, the need to respond to new threats and the rise of social movements that vocally support presidents now complicate and even limit what judges can do. Second, some judges may in fact be movement jurists whose approaches are closely aligned with certain sectors of society. Third, while Driesen cites the example of Turkey and Hungary as examples where judicial intervention in democratic backsliding can do some good, there are reasons to be cautious about drawing those lessons when it comes to America\u27s own situation. Fourth, in the U.S., some of the factors creating gridlock and political dysfunction are likely to also infect the judiciary. Fifth, the actual history of judicial involvement to protect democracy in the U.S. is not a happy one. Without tracing the entire sweep of that history, it\u27s worth noting that it\u27s just as likely that vigorous judicial review will block and demoralize pro-democracy forces or anti-corruption reformers. We might have to completely reimagine how judges are selected in this country before confidently putting our faith in judges to save democracy