On the Supreme Court and Saving Democracy

A Jurisprudence of Carrots and Sticks

NYU Law’s Democracy Project has been posting “100 Ideas in 100 Days,” and my entry is here. The title: “Has the Supreme Court Helped Save Democracy?”

Here are the first few paragraphs:

The Supreme Court is a powerful institution, but it alone cannot sustain American democracy. That much is uncontroversial. What is controversial is whether the Court is a net positive for democracy right now.

A common view, at least among liberals and progressives, is that the Court is a big net negative. The justices are accused of joining in the Trump administration’s assault on constitutional government, or of being complicit in that effort. Yet the justices have so far played a key role in preserving our democracy by safeguarding one of its preconditions, namely, the rule of law.

The Court has fulfilled this role in three ways. It has checked some executive branch actions. It has successfully discouraged the executive branch from taking some actions at all. And it has suspended or slowed down other executive branch policies, leaving room to check them at a more auspicious time.

Here are the final paragraphs:

As winter begins and we approach the second Trump administration’s second year, we can expect the justices to delay less and decide more. Major decisions on topics like birthright citizenship are coming due. But the justices will continue to deploy both carrots and sticks. The carrots will be big executive branch wins on matters like the removal power. And the sticks will be executive branch defeats or draws on issues like tariffs, birthright citizenship, or the Federal Reserve.

Even if the justices have performed well to date, they may not continue to do so. These are still early days, with three years left in the present administration. Perhaps the “constitutional crisis” that marked 2025 is already subsiding. Or it may escalate. There are no guarantees. So far, however, the Supreme Court has helped to sustain both the rule of law and our democracy.

I recommend perusing the entire series of posts, available here.