The Case in Question

When rioters entered the US Capitol on January 6, 2021, the self-evident attempt to undermine democracy “shocked the world.” To many, it seemed like something impossible, a view of democratic collapse from a third-world country, not the United States. But the underpinnings of democratic erosion had been present for far longer, with roots before the 2020 presidential election even commenced.

The subversive actions of Trump and his allies prompted an investigation by the US Department of Justice, a subsequent indictment, and a pending criminal trial for the former president. The case, however, has stalled in court. In July, a sweeping Supreme Court case on presidential immunity ruled that a president has immunity over all “conduct in carrying out the responsibilities of the Executive Branch under the Constitution.” 

Understandably, the ruling has caused uproar from critics who believe it to be a clear example of judicial corruption. Ruth Marcus, political commentator for The Washington Post, decried the decision as “bad beyond my wildest imaginings,” and called the court itself “deplorable.” Her fears are not unfounded: Trump himself appointed a third of the nine justices, and the case was decided along partisan lines. Further, a future Trump presidency, using this case and other executive powers, threatens to invalidate his prosecution entirely.  

The ruling thus raises a critical question about the state and future of American democracy, one which calls into doubt one of the most respected institutions of American justice. It is this question this post will attempt to answer: is the court’s ruling evidence of erosion of the judiciary in support of a dangerous autocrat? 

Erosion or Not?

In order to establish the credibility of the erosion threat, it is important to define what judicial erosion looks like. Legal scholar Ozan Varol identified the judiciary as a key component of erosion, serving as “a mechanism for consolidating power, bolstering the democratic credentials of the incumbent regime, and allowing the incumbents to avoid political accountability for controversial policies.” To evaluate erosion, analysis of these three criteria is crucial. 

Varol identifies courts used to consolidate power as those that are structured to generate primarily beneficial outcomes for a specific party. On this note, it is helpful to review key cases surrounding the election in which the Supreme Court could have conceivably delivered such outcomes which were favorable to Mr. Trump.  

The decision in Trump v. United States undoubtedly falls within this category. The case not only delivered plausible immunity for the former president, but it also aided in the delay of actual prosecution of the cases themselves. It’s important to note, however, that this was far from the only relevant case. In February of 2021, the court declined to hear arguments surrounding election challenges from Trump and his allies. Previously, in mid-December, the court similarly rejected a Texas case that challenged results prior to January 6.

Of course, many more decisions of the court have swayed in the favor of the former president. Dobbs v. Jackson Women’s Health Organization or Loper Bright Enterprises v. Raimondo could certainly be considered a victory for Mr. Trump, and Varol is quick to note that an empowered judiciary also plays a large role in safeguarding the interests of the former administration if they are removed from power. These cases present an alarming argument, but one which remains outside of the sphere of the election issue (and which will not be discussed in depth at this moment). 

The key takeaway in terms of power consolidation is not to make a definitive argument one way or another; rather, it is to point out that any definitive argument lacks failsafe grounding. If the court is indeed a method of consolidation of Trump’s power, it has not acted in a manner consistent with clear subversive intent.  

On the final two points, less discussion is necessary. While the 2024 ruling may have increased legal legitimacy of the Trump administration, domestic popular opinion was undoubtedly split. At best, it swayed some observers. At worst, it degraded public opinion of the court. In international concerns, Varol identifies factors of increasing willingness to trade or recognition of democratic standing as benefits. Here, the influences of the ruling on both are neither well documented nor likely consequential. 

Finally, Varol identifies possibilities of accountability avoidance through an eroded judiciary. By this logic, the court itself can effectively pass judgment on key issues that might attract controversy if conducted through either an executive action or legislative body. Once again, an in-depth analysis of policy actions taken by the court in cases such as Dobbs or Raimondo would yield important analysis and perspective, but that is not the objective of this post. In the case of Trump v. United States, little policy was actually determined.

A final important note to be made is that the majority opinion of Trump v. United States remanded high levels of legal analysis. Lower courts are likely to make important distinctions about what was official Executive conduct, which points to less judicial erosion. If the judiciary intended to participate in aggrandizement, it likely would have hesitated to defer such important decisions. 

Democratic but Dangerous

While concerns surrounding the July 1 decision are certainly warranted, and further analysis of Supreme Court decisions is crucial, the decision in Trump v. United States does not seem to indicate behavior consistent with textbook democratic erosion.  

To be clear, this conclusion does not weigh on several factors. The following are evident: first, the behavior of former President Trump surrounding the January 6 insurrection was clearly intended to erode democracy and requires redress. Second, the court may still behave in manners that point to erosion, particularly in cases surrounding policy decisions. Finally, the ruling, even if it does not attempt to erode democracy, can very easily undermine American democracy. 

To elaborate on this last point, it is important to look at the consequences the ruling had on the criminal case against Mr. Trump. The case has stalled in court, only recently re-entering the judicial process with a fresh indictment. This makes it a near impossibility that any substantive ruling will occur prior to the election, or the following inauguration. Looking to the future, the Constitution grants the sitting president the power to pardon a given individual. This power has already been used to protect former presidents from criminal consequences. While questions regarding constitutionality remain, it is entirely possible this could be used by a future Trump presidency to invalidate prosecution and undermine the rule of law.  

Combining presumptive immunity and the presidential pardon, a dangerous basis for a menacing future presidency emerges. Theoretically, a future president could simultaneously be immune to prosecution on official acts and capable of pardoning any others. Even if the court did not intend to erode democracy in this way, that possibility is a consequence of their actions. 

With these caveats in mind, a satisfactory conclusion seems elusive. Summarily, it can be described as this: while actions of the court deserve further review, particularly in areas surrounding policy decisions, and while the immunity ruling is not definitively democracy-friendly, the July 1 case is not an instance that exemplifies democratic erosion in the Supreme Court.