For nearly a decade, much of the American public’s attention has been devoted to whether or not Donald Trump hopes to destroy American democracy. Opponents speak his name alongside a volley of epithets – populist, demagogue, nationalist, authoritarian, dictator – some self-imposed, some otherwise. Still more opinion column inches have been devoted to the weakening of American institutions. Trump opponents decried the Supreme Court Trump v. United States ruling on presidential immunity as an affront to democracy, the latest step toward incapacitating the judiciary and eliminating all checks on the executive branch.
However, outside of those circles where administrative law buffs dwell (presumably dank library basements and obscure policy blogs), the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo has flown largely under the radar. On its face, this ruling may appear only relevant to administrative minutiae. In reality, it represents the latest in a string of Supreme Court power grabs. The Supreme Court has quietly paved the way for democratic erosion under the guise of checking executive power. While the electorate is distracted by Trump’s antics, the greatest threat to American democracy could come from the very institution charged with protecting it.
Loper Bright reverses the long held Chevron doctrine, which historically directed courts to defer to federal agencies when interpreting ambiguous statutes. The 1984 doctrine was based on the principle that judges possess neither the technical expertise to resolve factual issues nor the political authority to resolve policy issues. The Loper Bright decision reverses four decades of precedent in favor of expanding judicial powers. Courts must now “decide all relevant questions of law.” As Justice Kagan argues in her dissent, any number of “mixed questions” dealing with both fact and law could fall under this vague standard.
This case is just the latest in a broader trend of judicial power expansion. In 2021, the Supreme Court unveiled its new major questions doctrine, holding that in the absence of clear authorization from Congress, courts must reject agency interpretations of policies pertaining to “powers of vast economic and political significance.” With a series of vague mandates, the Supreme Court has effectively hogtied federal agencies, elevating the judiciary at the expense of the executive.
On face value, these actions may appear to actually bolster democracy. Judicial review is traditionally viewed as a safeguard against authoritarianism. In Democratic Backsliding and the Rule of Law, Tom Ginsburg points to courts as “critical institutions to protect democracies from backsliding,” pointing to recent examples in Colombia, Honduras, and South Africa where strong judiciaries pushed back against executive aggrandizement.
However, strengthening judicial review can also serve as an effective strategy to promote democratic backsliding. In Stealth Authoritarianism, Ozan Varol identifies entrenching judicial review as one of six mechanisms stealth authoritarians use to amass power. Threatened political leaders may delegate their own power to the judiciary in order to preserve political hegemony. Leaders can continue to promote their policies while shielding themselves from electoral blowback by shifting powers to unelected, ideologically aligned judges. Aziz Huq and Ginsburg further identify politicization as a viable strategy for aspiring authoritarians. By replacing career civil servants with politically motivated officials, authoritarians drive out underrepresented groups from executive power, including would-be resistors.
The effectiveness of judicial power consolidation is not merely theoretical: Russia offers a prime example. In 2000, under the banner of creating a unified political body, Putin empowered federal judges to overturn regional laws. While this move appeared to increase judicial independence, Putin used this expansion of judicial powers to centralize power in the executive branch. Judges removed thousands of laws, cementing federal control over regional bodies. Instead of checking executive power, judicial review can serve as a tool of authoritarianism.
Taken in this light, it becomes clear that Loper Bright is merely the latest step in a concerted effort to undermine American democracy through judicial expansion and executive politicization.
During his term as president, Trump reshaped the American judiciary, appointing more than 200 federal judges, including three Supreme Court justices. These appointees were selected for their youth and extreme conservative credentials, poised to mold American law for decades.
On the other hand, federal agencies are staffed by a mix of political appointees and career civil servants. The Office of Personnel Management maintains strict regulations on the hiring of former or current political appointees to non-political positions, and even political appointees are held accountable to the electorate, as they stand to lose their positions with every change of administration.
Loper Bright shifts power away from these experts to unelected judges. This move is not simply a check on the executive – it represents a transfer of authority from nonpartisan and politically accountable actors to an untouchable, partisan judiciary.
The use of the major questions doctrine reveals how this theoretical transfer of power works in practice. Though the doctrine was never cited during Trump’s presidency, the same Supreme Court has used major questions doctrine to block Biden initiatives from housing policy, to Covid-19 vaccinations, to student loan forgiveness. A 2023 study of lower courts reveals “many judges view the doctrine as a little more than a grab bag of factors, which they seem to be choosing from at their discretion.” Loper Bright further elevates the standing of individual judges who wish to impose their own policy agendas, poised to stymie the activities of any executive they oppose and lay down in front of any executive they support.
While Donald Trump’s authoritarian rhetoric has captured the public’s attention, the judiciary’s consolidation and politicization of power, embodied in the Loper Bright decision, poses a more insidious threat to American democracy. With all eyes on the upcoming elections, democratic norms are quietly eroding in the courts. Regardless of Trump’s ambitions, the Supreme Court is fueling democratic backsliding under the guise of strengthening institutional checks by concentrating power in the hands of politicized judges. In the end, the greatest threat to American democracy may come not from the executive branch, but from the judiciary that claims to restrain it.
This post was a very insightful analysis into a Supreme Court decision that, as you noted, has largely flown under the radar – even here in Rhode Island, where our own former governor was the respondent in the case! The relationship between judicial review and democratic resilience is certainly complicated and at times convoluted, but I think you did an excellent job reviewing both sides of the debate and arguing the threat to democracy posed by Chevron’s reversal.
One question I am left with is how the potential politicization of the civil service under the incoming Trump administration might change the way we perceive judicial review. If administrative agencies are reshaped such that the decision makers are exclusively political appointees interpreting fact and policy based on partisan gain and not technical expertise, then is the distinction between administrative deference and judicial review less clear cut? Should we be less concerned about judicial overreach into the policy process when the executive becomes more politicized (which, as you mention, is also a viable threat to democracy)?
I do not have the answers, but I am curious to see how things play out as the Trump administration takes office.