Two different mortal threats to democracy have been on vivid display this past year: Trump’s January 6 insurrection and the ultra-conservative Supreme Court majority’s rampage through statutory and constitutional law. Considering these events on split-screen raises some uncomfortable questions about LPE analysis of democracy, law, and courts. In particular, certain law-is-just-politics views deployed to dismiss the Court seem to foreclose criticism of Trump’s attempted coup as lawless. LPE discourse routinely invokes “democracy” as an alternative, legitimate source of authority (whether to markets or to courts), yet for democratic institutions to assert and receive primacy requires some conception of law that does not just dissolve back into “politics.” Otherwise, the democratic decisions we long for cannot survive past their moment of adoption to shape subsequent practice.
Consider the focal point of January 6, Vice President Pence’s tabulation of electoral college votes before Congress. The Trump camp’s stated view was that Pence could, on his own authority, simply reject electoral votes from states that went for Biden based on flimsy claims of fraud and irregularity. Trump raged against Pence for not doing so, characteristically calling him “weak” for falling back on a liberal role distinction between his political interests and his legal duties. But if law is just politics, wasn’t Trump right? Absent some legal baseline irreducible to political outcome, why isn’t it correct to say that Pence succumbed to precisely the weak-minded liberal silliness that some leftists mock when liberals criticize courts for legal error, not simply bad political outcomes? Indeed, this dynamic characterized much of the Trump presidency, from the Joe Arpaio pardon (seemingly allowing the President to nullify constitutional rights, if you even believe in such things) to “emergency” spending on the border wall (seemingly bypassing Congressional power of the purse).
Two aspects of the Pence example are especially illuminating. First, it provides a stark reminder that “democracy” is neither self-executing nor self-evident. Throwing a decision to “democracy” is only as good as the institutions whose decisions are legitimated as “democratic.” One quickly slips into a regress if there is conflict about the constitution of a “democratic” entity, whether a President, a legislature, or an electorate. Dispute over who was elected or who gets to vote? Decided it democratically!
Resolving disputes over democratic process and outcome seems to require resort to some rules (eek, law!?). But then how do we determine whether those rules have been followed or not? Leaving that to “democracy” only continues the regress.
A second notable aspect of January 6 is that Pence essentially determined the legal question for himself. This consequential decision was made by a duly and democratically elected official, not anyone so untrustworthy as an unelected judge. Does Pence’s elected status mean that analyses of judicial power have no bearing, and does it authorize treating his role as unabashedly political?
There is an intelligible view, more modest than a full law/politics conflation, that limits its scorn specifically to courts rather than to law. Even if some law/politics distinction is conceptually sound and practicable, human institutions are fallible to varying degrees, and there are systematic reasons to expect courts in the U.S. system to go very badly awry. This point about institutional competence is well worth taking seriously. But to maintain some distance from the law/politics conflation, a turn to institutional competence requires a conception of specifically legal competence that entails something other than simply throwing a disputed question back to democratic politics for resolution.
Consider the Court’s looming entertainment of the “independent state legislature” doctrine. In one form Trumpists advocated applying to the 2020 election, state legislatures could adjudicate election disputes with unbounded authority and block state courts (among others) from weighing in. If the failings of judicial decision-making consist simply of their distance from unabashedly political decisions by democratically constituted bodies, then shouldn’t the independent state legislature doctrine be welcomed? And yet our present circumstances indicate how disastrous that would be for democracy.
Institutional competence considerations don’t uniformly run against courts. The stakes here are not simply about court-enforced constitutional constraints on legislation. They include resolution of post-hoc election disputes involving the application of state statutory law. Is who won the election—and each subsidiary question about which votes to count and whether they were counted accurately—itself just a political question? If so, then it would seem entirely appropriate for a legislature simply to declare that whomever it prefers is the one who won, just as Trump urged Pence to do. At least it wouldn’t be unelected judges doing the same thing!
Moving beyond election disputes, the more general point is this. Let’s stipulate that some democratic process makes an important policy decision on political grounds. What happens next? Some concrete question or dispute arises that implicates the democratically established policy. For the prior democratic process to have been anything but a waste of time, it must constrain how this subsequent question or dispute is resolved.
Subsequent decision-makers (whether judicial, executive, or legislative) must do something other than simply impose their point-in-time “political” judgment about the best outcome. They are not writing on a blank slate but instead should faithfully implement the approach already authorized democratically. Isn’t this gap, this constraint, this democratic direction, law? It is both infeasible—and likely undesirable, to wit the independent state legislature doctrine and Bills of Attainder—to imagine overcoming the problem by throwing all such questions back to the same democratic process that nominally had made a durable and somewhat general decision in the first place.
This view leaves plenty of room for competing conceptions of what democratic institutions should look like. For instance, it allows for incorporating administrative agencies into the democratic process itself rather than treating them as merely implementers. Nonetheless, the last actor to hold the ball isn’t starting from scratch.
Nor can this line of argument be brushed away with blanket dismissal of state institutions. Indeed, the same general point applies to small-scale nonstate entities. If a membership organization democratically makes a decision, it seems not merely intelligible but necessary for that decision to bind future organizational action to some extent. That includes binding members who had advocated for a different decision initially and yet recognize they are not free simply to act as if their view had prevailed.
To be sure, I make no attempt here to provide an affirmative account of how this can work at all, let alone work best. I appreciate, and indeed find compelling, the well-worn critiques in the Realist tradition that doubt or scorn the pretensions of law to technical science, that press on the flexibility of logic and language, and that highlight the individual and structural tendencies that militate against apparent constraint even while retaining tactical benefits from invoking such constraint.
My point, more narrowly, is simply that romantic invocations of democratic politics provide no strict alternative. Actual legal decision-making is often—rightly—criticized for usurping democracy, but nonetheless it is mysterious how a robust democracy could do without law. Without it, democratic decisions cannot “stick.”
In this way, democratic critics of our actual legal institutions need an affirmative account of better ways to do and understand law. That might well include radical changes to or breaks with existing judicial institutions, including how they relate to legislatures, administrative agencies, or whatever meaningful democracy would entail. Nonetheless, to say that current institutions are doing law terribly—and in ways that undermine democracy specifically—is quite different than suggesting that reconstructive efforts are necessarily futile or even antithetical to the primacy of democratic politics. If law is a fool’s errand, then so much the worse for democracy.