What are the threats to the norms and institutions of democracy, whether in America or around the world? When democracies weaken or die, does it happen suddenly or gradually? What are the first changes we might see? What are the causes? And what, if anything, can democracies do to stop it?
Can democracies fall? What does it look like when they start to slide? What are the tipping points? These are some of the big questions I find myself asking as I look at a wave of unsettling changes in government around the world – and wonder whether it has happened here in the past or will happen here in the future. What are the key ingredients in democracy – indeed, what exactly is democracy, anyway? And what are the threats to those ingredients? When we see democratic systems weaken, how and why does it happen? And is it happening here? What differentiates this kind of “democratic backsliding” from ordinary democratic regime change?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Sue Stokes, the Tiffany and Margaret Blake Distinguished Service Professor in political science, and Aziz Huq, the Frank and Bernice J. Greenberg Professor of Law here in the law school. Sue is the director of the Chicago Center on Democracy, the President-elect of the American Political Science Association, and the author of six books on democratic theory and democratic erosion. The latest one, which is about to come out is The Backsliders: Why Leaders Undermine Their Own Democracy. Aziz is the author of books and articles across a huge range of subjects, including How to Save Constitutional Democracy (coauthored with Tom Ginsburg) and The Rule of Law: A Very Short Introduction.
I’ve brought them here to help me understand what democracy is, what it isn’t, and what can happen to it – not just here but around the world.
Have a listen.
WILLIAM BAUDE: Can democracies fall? What does it look like when they start to slide? And what are the tipping points? These are some of the big questions I find myself asking as I look at a wave of unsettling changes in government around the world. And I wonder whether it has happened here in the past or will happen here in the future.
What are the key ingredients in democracy? I mean, indeed, what exactly is democracy, anyway? And what are the threats to those ingredients? When we see democratic systems weaken, how and why does it happen? And again, is it happening here? What differentiates this kind of democratic backsliding from ordinary democratic regime change?
To try to find out the answers to those questions, I'm here with two of my colleagues-- Sue Stokes, the Tiffany and Margaret Blake Distinguished Service Professor in Political Science, and Aziz Huq, the Frank Bernice J. Greenberg Professor of Law here in the Law School.
Sue is the director of the Chicago Center on Democracy, the President-Elect of the American Political Science Association, and the author of six books on democratic theory and democratic erosion. The latest one, which is about to come out, is The Backsliders-- Why Leaders Undermine Their Own Democracy.
Aziz is the author of books and articles across a huge range of subjects, including How to Save Constitutional Democracy, co-authored with Tom Ginsburg, and The Rule of Law-- A Very Short Introduction. I've brought them here to help me understand what democracy is, what it isn't, and what can happen to it, not just here, but around the world. Have a listen.
Sue, Aziz, thank you for joining me. So I've heard about this idea, concept, ominous threat, called democratic backsliding. Can you, Sue, tell us a little bit about what that is? Is it a global phenomenon? What is it? What does it mean?
SUSAN STOKES: It is a global phenomenon. In the last 25 years, since the early 21st century, there have been about two dozen countries around the world, democracies around the world, in which elected presidents or prime ministers start eating up their own democratic institutions.
So it's really a phenomenon of executive aggrandizement, but at a kind of extreme level. And these countries are all over the place. Every region of the world has had experiences of this kind. But it's executives who come to office and start to undermine the independence of the press and of the courts, court packing, changing composition of high courts, attacking civil society organizations, politicizing the civil administration, the bureaucracy, making many civil NGOs, civil society organizations, illegal, attacking the integrity of elections.
And I won't bore you with the gory details. But we have to pay a lot of attention to drawing a line between normal presidents and prime ministers flexing their muscles and testing the limits of their power and what we call democratic backsliding or democratic erosion, where, both in terms of horizontal accountability to courts, and legislatures, and so on, and vertical accountability to voters, being held to account by the press, those things get curtailed to a significant extent. And that's what we call democratic backsliding.
WILLIAM BAUDE: Great. So maybe we'll get a little detailed. But I guess I am curious about that line drawing problem, because you could imagine that lots of the times, when there's an effective, strong leader, they might change things, whether they-- that might be what they got elected to do, is to change some institution that's disfavored by some set of people or to adjudicate the claims of one group in the country versus another.
So what is it that makes-- what is it, again, that differentiates between just regime change, or leaders who change, whether that's the New Deal in American history, or lots of examples from abroad, versus democratic backsliding? Obviously, the strongest thing that might come to our mind, but I take it it's not usually this crystalline, would be a democratic leader who comes to power, and there's never another election again. There's one. There's one election. And that's the last election the country ever sees.
But I take it, instead of that, or before that happens, or something, we might see other things. And what are the features that make that democratic backsliding, rather than just politics?
SUSAN STOKES: It's a great question. And it's really a question of degree, in some sense. It's when we-- leaders who we define as backsliders are the ones who do all of what I just said before, not necessarily all at once, but they do it all, and they do it in some kind of sequence. So they are not just maybe playing with the idea of packing the court, as FDR did, or they're not just infringing on some aspects of press freedoms, as Barack Obama did.
They're going after all of those institutions and all of those mechanisms of accountability. And they're doing so to a pretty extreme degree. And the way that we technically count them-- so we really go to a good deal of trouble to make sure that we're drawing that line properly. There's an international data gathering organization called Varieties of Democracy that gathers all kinds of information from expert surveys about how governments have treated the press, how they've treated courts, how they've treated elections and election administration bodies, and so on.
And if there is a sufficient downgrading of that kind of performance in democratic terms over the period of the term in office, then they count as democratic backsliders. So that's how you catch the Viktor Orban, as opposed to the pretty typically ambitious politician.
There are a number of near-miss cases. So the Johnson government in the UK, Boris Johnson government, made some moves in the direction of democratic backsliding. But it didn't amount to enough of an assault on press freedoms or the courts to count. But it's absolutely crucial that we be able to draw that line and be able to explain. I mean, that's what social scientists do. We have methods that we can point to. And then people can go and take a look, and reproduce our findings, and make sure that they think we've coded these things properly.
WILLIAM BAUDE: That's very helpful. Aziz, you've also done work. You've written a book about this, at least one. So what--
AZIZ HUQ: That's true. I have a hard time keeping a track--
WILLIAM BAUDE: [LAUGHS]
AZIZ HUQ: --how many things.
SUSAN STOKES: What are you up to now?
AZIZ HUQ: I don't know.
SUSAN STOKES: [LAUGHS]
WILLIAM BAUDE: So what do you think about how we can measure this? And how does it fit into maybe questions of law? Is this something that--
AZIZ HUQ: I think it's helpful-- I find it helpful to take a step back and ask myself what I mean by democracy, because that's a complex term. It's a term that doesn't pick out one institution. Democracies are not equivalent to elections. For example, China has, actually, a pretty robust electoral system at the local level. And people vote. But I think that it would be inaccurate to say that those elections made China democratic.
Rather, democracy is a quality that emerges at the level of a system. It's not a quality that is captured by a single design feature or practice within a jurisdiction. And then the question becomes, well, if you have this complex feature that's emerging out of a blend of state bodies, institutional practices that exist within political parties, and then the culture of people who participate in politics, how do you distill that complex idea down to an understandable form?
And obviously, the work of political scientists, the work of Sue and her colleagues at Bright Line Watch, is one approach, which is to say, look, here are the five or the 10 most important elements of that institutional complex that go to-- that index democracy.
I find it helpful to think about a definition that was offered by a political scientist at NYU, and maybe you'll disagree with this, which is, democracy is a system where people lose and leave office. It's a system in which there is the capacity for the polity to, in some fashion, change their mind, and in relation to changing their mind, shift policies, and in particular, shift people in office.
And a system in which it is impossible or extremely unlikely that changes in-- either it's extremely unlikely that people will change their mind because their minds are locked in-- that's actually a characteristic, for example, of the Chinese system-- or a system in which people do change their minds, but it is either impossible or extremely difficult to translate that shift in beliefs, that shift in what you want as members of the electorate, into changes in office, is no longer a system that can be characterized as democratic.
And absolutely, just to pick up on something you said, Will, notice that there is systems in which we can say, yeah, it's very clear that there's no opportunity to change your mind. A government that comes to power, as happened in Algeria, and said, one person, one vote, one time, is a system in which there is no longer the prospect of changing one's mind in the future.
But there are systems, or there are practices that have emerged to remove the practical opportunity to change one's mind as a matter of politics, as a matter of who occupies elected office, without there being a dramatic and overt shift in the institutional practices, like the calling off of all elections into the future.
So I would really focus upon that one actually pretty simple characteristic and say, look, there's a whole bunch of things that have to fall out or that have to be true in order for people to be able to effectively change their mind politically.
WILLIAM BAUDE: So just to make sure we're getting this-- so this picks up on the question of why these other non-voting institutions are part of this definition. There have been times in-- you imagine a country where the people overwhelmingly vote to suppress the speech of some group, some minority. And so you might naively think, oh, well, it's maybe bad, maybe illiberal, but it's democratic, because 90% of the people decided they were scared of communists and voted to suppress communist speech.
And I take it the reason we'd worry about that as democracy is, we'd say, but an important part of democracy is the ability of people with this disfavored view to put it out there and try and convince people to change their minds to it. And especially if they're being suppressed because people are afraid it's persuasive, then that affects democracy. Is that the idea?
AZIZ HUQ: Well, again, I'd be interested in whether Sue has a different view. But I think that the way that I would parse that is-- I think that the question that you teed up embeds within it the assumption that democracy is something that we look at at the present moment. And we make a judgment about, is the present moment one in which the will of the majority is or is not realized?
And I would push back on that definition. And that's why I offered the definition of, can we change our mind in the future? I think a more robust and useful definition of democracy does not just pay attention to the present moment. It asks about the future. And it asks about the durability of institutional and cultural frameworks in which changing one's mind politically is feasible.
So to take your example, absolutely. There are instances in which the speech of a disfavored minority is suppressed, and suppressed extremely ruthlessly and effectively. Take, for example, child pornography in almost every-- I think every jurisdiction in the world. Is the suppression of child pornography, which is speech that presumably some minority of people want to engage in, a threat to democracy?
Well, I think one way of thinking about that is, well, it's not, insofar as the suppression of that speech is in no meaningful or tangible way reducing the possibility, mitigating the circumstance, that'll allow us to change our mind in the future about who occupies office and what sort of policies there should be.
And then I think the really hard question is, sometimes there are things that we need to commit today to in order to preserve our ability to change our mind in the future. But that fact of committing today looks an awful-- often looks awfully undemocratic. And trying to figure out what commitments we need to have today in order to preserve our ability to change our mind in the future turns out, I think, to be one of the really hard questions of democratic theory.
SUSAN STOKES: Yeah. Just to pick up on that, I think one of the dilemmas that we face as citizens in backsliding democracies is we can't be sure when we've crossed a line that, past which, we can't fire the government when we want to. There's a wonderful paper, I think, coauthored by the same-- by Adam Jaworski and our colleague, Zhaotian Luo, here at the University of Chicago, that shows formally, in a formal model, that if there's some uncertainty, if people have some uncertainty about where we are in that process of allowing certain kinds of rights to be shorn away in a popular way, we don't know when we get to the point where we're past being able to say, wait a minute, this isn't such a great way of doing things. We want to kick these guys out.
So that uncertainty about where you are in the process has really been a critical point. One way of thinking about the problem of the tension between more democratic procedures and the protections of certain kinds of rights and institutional integrity-- since I'm with two law professors, I will very inadvisedly give the example of courts.
So you frequently will hear phrases like-- coming from presidents, prime ministers-- these unelected judges just made a really unpopular decision, the people don't like it, and questioning the legitimacy of the judicial system to come to decisions that are unpopular. So that's something that we hear from Donald Trump quite often. It's something that we heard a lot from Andrés Manuel López Obrador in Mexico, who was the previous president.
Judges make decisions that go against the plans-- often, the executive-aggrandizing plans of the president. And the president says, these are unelected judges. And we need to do something about the way the courts are structured. In Mexico, they've gone to the-- I'm sure you know, they've gone to the extent of, now, all federal judges in the whole system, up to the Supreme Court, are going to be elected.
Now, what could be more democratic than giving people the choice about which judges they want? The problem is that it also happens that this was a decision taken by a president who was very popular of a party-- who leads a party that has virtual control over the whole system for reasons that are complicated. And some of those reasons have to do with popular policies and changes that he made in the country.
But that means that the judges are likely to be coming from the political party that also is the party of the president and is totally subordinate to the president. So all of a sudden, a check on presidential power and a kind of institutionalized balancing is gone. And the people may be quite in favor of that until, all of a sudden, whoa, now we have a president who is doing things that look terrible for us. And we have no way of constraining him or her.
WILLIAM BAUDE: Yeah. So I guess, when you bring in the courts, do you have the same-- a version of the dilemma that we started with, and certainly a dilemma we encounter in law school all the time, that when the judges rule against the things I want, they're judicial activists. And when the judges rule in favor of the things I want, they are guardians of the rule of law. So is there a social scientific way, or some way to identify what really counts as the good kind of judicial review versus the bad kind of judicial review?
SUSAN STOKES: Yeah. I'm not going to go anywhere near judicial review in this company. But I will say that what we focus on in thinking about what kinds of changes or attacks, if you will, on the courts that are part of the story of democratic erosion-- we focus on institutional changes, such as forced retirements and the appointment of loyalists, changes in the nomination procedures. And that's very much part of the autocrat's playbook. But I'm going to leave judicial review to the experts.
AZIZ HUQ: Let me make a different point, but I think it bears upon judicial review, which goes back to the example of AMLO's reforms in Mexico. In the United States, many subnational units, many states, have judicial elections. And those judicial elections are hotly contested. It's not the case in Illinois, where we live. But it is the case next door in Wisconsin, where their state Supreme Court elections have been very high profile, have attracted a great deal of money and outside attention, and generated what I think, by any account, is robust forms of democratic engagement.
I would draw attention to the difference between the way that judicial elections have played out in a state like Wisconsin and the way that they've played out in the last two months in Mexico, where you had very low popular engagement, where you had very few candidates, as I understand it, who were not associated with Morena, which is AMLO's political movement, and where, in many parts of the country, in particular where criminality and the drug trade is a systemic problem, you have candidates who, at least by the reporting that's available, seem to be closely associated with the cartels coming into office.
What does that comparison tell us? I think it tells us that you can have the same institution, judicial elections, being implemented in, formally, very similar ways in two different places. And because of the difference in the politics, because of the difference in the texture of the society-- and that's why I drew attention to the presence of the syndicates and the cartels in Mexico-- the effect of that same measure is going to look and be really different in the two different places.
And so the question about how one thinks about different pieces of the apparatus of state, whether it's judicial review, whether it's judicial elections, whether it's the existence of certain kinds of independent bodies within the government, which is much more common outside the United States than it is inside the United States, I think that those are all really challenging questions, because an institution is not a thing that doesn't vary between time and place.
An institution, or a feature of an institution, is going to have extraordinarily different effects, sometimes pro, sometimes anti-democratic, depending upon the time, and the place, and the way that it's implemented.
WILLIAM BAUDE: That's very interesting. So I guess, if I can switch tacks to a slightly different question, I guess another big question I have is, how does this happen? So again, the naive view, which I try not to have the full naive view, would be, you'd think, once you get a healthy democracy running-- and that's going to involve elections, and parties, and courts, and some legal rules, or something-- well, it ought to be self-protective in some way.
And in some sense, you wouldn't expect it to have gotten-- to survive very long if it weren't. So there are norms and things like that that protect it. And so, if we're seeing, not just as a one-off, but in a range of countries around the world, a trend of a number of places where backsliding is possible and successful, how does that happen? What does it look like?
Does it take luck? Does it take the right charismatic, Machiavellian personality? Does it take-- I don't know. Do we not know why it happens? It just kind of happens?
SUSAN STOKES: Well, I've just written a book on this subject that's coming out in September. And so I can say a lot more than you are going to want to hear about that--
WILLIAM BAUDE: Try me.
SUSAN STOKES: --to answer that question. There are two separate questions. One is, why are particular countries more at risk of democratic backsliding? And the other is, why are we seeing a wave of it at this moment? If I could show you a figure that showed the frequency of military coups and instances of democratic backsliding over time, there's a big wave, upsurge in coups in the latter 20th century, 1970s or '80s. And then that's actually subsided.
And after about 1999, when Hugo Chavez was the first case of this kind, in this current wave, there's a big uptick in instances of Democratic backsliding, or election of officials who will go on to undermine their democracies. So on that-- on both questions, really, one of the key factors that our research has uncovered as a predictor of democratic backsliding is income inequality.
The more unequal the distribution of income, market income, post-FISC income, whichever way you measure it, a country has, the more likely-- the more at risk they are of democratic backsliding. This is one of the reasons why the United States has been more at risk than you might have thought, given the age of our democracy, and the consolidation of it, and the wealth of the country, and so on. So that's a really key factor.
And there are all kinds of reasons why income inequality encourages democratic backsliding. And I'll list some of them. But as you can imagine, they're not one-offs. They're interrelated to one another. Countries, polities that are very unequal in income terms also tend to be more polarized in their politics. And the polarization-- partisan polarization is known to be a predictor of backsliding. And it's not hard to understand why.
When voters think that the other party coming to power is the apocalypse, they're more likely to wink at undemocratic behavior by their leaders. And that goes not just for citizens, but for elected leaders as well. I think some of what we see in the Congress, in the Republican Congress these days, I think, follows that kind of logic-- this, I may not like what he's doing, but god forbid that the Democrats be coming into power again. So that's a factor.
Another is that income inequality encourages a kind of grievance culture and sense of betrayal and loss among sectors of the population who lose out. And that sentiment, that sort of political culture of having a sense of loss, and of frustrated ambitions, and of one's children not having a chance to get as far as oneself did, that can be taken advantage of by populist or demagogic leaders, who will turn that sense of grievance into, and they did it to you. And they are doing it to you on purpose. And without me, they're going to continue to do that to you, which generates outrage and anger, which is well known among political psychologists to fuel turnout in elections.
Another factor that I've been very interested in my research is, in addition to polarization, one of the-- or in addition to a rhetoric that exacerbates and plays on polarization, there's also a kind of invitation to denigrate democratic institutions, to cultivate a culture of cynicism and skepticism about institutions of all kinds. They're all controlled by elites. They are rotten to the core. They're corrupt. We don't need to worry about limiting the independence of courts, because these courts are terrible and full of corrupt judges anyway.
We should-- no problem prosecuting opposition politicians, because really, they are all criminal, and so on. And that goes-- why should we worry about throwing out these bureaucrats? They're corrupt, they're self-interested, and so on. So those are all features that play into or open up space for democratic backsliding, for backsliding leaders who want to aggrandize their own power.
But it does take a certain kind of individual to do that. I mean, a president or prime minister who comes to office who venerates his or her constitution and democratic history is not likely to be inclined to attack those institutions. So that's another factor. You have to get unlucky with the kind of person-- the personality of the kind of person whom you elect.
Then the last thing I'll say is that there is a-- they're role models for one another. So Donald Trump is inspired by Viktor Orban. Jair Bolsonaro is inspired by Trump. So there is also kind of-- one of the reasons that I think we see this wave, this "why now" kind of thing, is that they are kind of inspiring one another. There is a kind of demonstration effect.
AZIZ HUQ: So I'm going to take this chance to raise some questions about Sue's thesis. I took your name in vain, Sue, when I was recently in Uppsala, which is in Sweden, at a conference which was about democratic self-defense. And I said, well, my colleague in political science has done this wonderful research. I think the PNAS paper is a terrific study.
And I offered the suggestion or the finding that inequality drives these outcomes. And there was a wave of eyerolls around the room among the Swedish members of the group that were there, because in Sweden, there is a party, confusingly called the Swedish Democrats, that is way over to the right. And although they've been brought into government now, the general view among this select group of political scientists-- and you will tell me that that's a biased sample-- was that given half a chance, the Swedish Democrats would be just as bad as, fill in the gap.
And the other example they pointed to was Switzerland, where Switzerland has a movement that has many anti-democratic traits and beliefs that they would put into practice. And the observation that was made is, look, we have these jurisdictions where inequality is among the lowest in the world. And yet we have exactly the same movements.
And it's not that they're copycats. The Swedish Democrats have been around quite a while. And I don't know as much about the Swiss case. But my sense is that the in the Swiss case, you also have a movement that's been around quite a while.
And then I thought, to complement those, India is a really interesting example, where India has been a tremendously unequal polity back to the 1940s. And yes, you've had moments of what I think you can fairly describe as backsliding, both at the end of the 1970s, with the emergency declared by Indira Gandhi, and then today, under the BJP government.
But it doesn't seem to me, at least from the outside, that what's predicting those moments of relapse is spikes in inequality. So I don't know. I didn't really have an answer to my Swedish colleagues. And I was trying to be nice to them, or I was trying not to be too Chicago, which is, I think, generally a good practice when one leaves the building here. But I'm very curious what you think, how you would have responded if-- what would have been my esprit d'escalier response to that?
SUSAN STOKES: So I think it's really important to distinguish between parties-- right-wing ethnonationalist parties and left-wing populist parties that can become powerful in their systems, can grow, can attract more and more voters, can even achieve office and democratic backsliding.
So when we see cases of democratic backsliding, those are the two flavors that it comes in. It comes in the right-wing ethnonationalist flavor, and it comes in the left-wing populist flavor. But not all leaders of those kinds, even when they do attain power, as they really have, to a significant extent, in Sweden, are-- that's not equivalent to democratic backsliding.
The fact that there is a far-right ethnonationalist party in Sweden is not the same as that there's been democratic backsliding in Sweden. And I would posit that the high level of income equality, a very effective welfare state that is widely supported, even by supporters of the Sweden Democrats, and somewhat less polarization than in other polities, and somewhat higher-- and this is the good survey data to show this-- higher confidence in institutions in Sweden than in many other countries-- that those things are kind of a reflection, to some extent, of higher income equality.
I mean, I talk a lot about the Swedish case in my book. And it's really fascinating, because here's a political party that sounds all the same notes, that we're under assault from these migrants. They don't fit in. They're undermining our country, our culture. And this is the party that got the second largest number of votes in the last national elections.
But alal of that is true. And yet, nobody really is going around bashing the Swedish press. There is not a kind of assault on the courts. Nobody is going around, saying that the opposition is traitorous. So something is producing a kind of garden-variety right-wing ethnonationalist party, which becomes empowered, to a large extent-- I mean, it's a complicated story about what their relationship is to the government. But they do have real access to power.
And yet, we're not releasing the institutional assault on democracy. And I wouldn't put that all on income equality. But I think that is part of the story.
AZIZ HUQ: One of the other interesting pieces of the Sweden story-- you didn't realize you were doing a podcast on Swedish politics, but here you are-- is Sweden does not have judicial review. The Swedish courts have no authority to speak to the constitutionality of legislation. And one of the startling-- for an American or somebody trained in the American tradition, one of the startling conversations that you have is that for Swedes, the notion that you would give the responsibility of honoring constitutional norms to judges is bafflingly silly.
On their view, there is, I think, what the economists would call a real moral hazard problem with judicial review, that once you say, look, it's the job of the people in robes to say what the basic law is, well, gosh, won't that mean that your average legislator, your average official, will cease to pay attention to those questions and will let-- will say, well, I'll do what I have to do, given my policy preferences, and I'll let someone else worry about its core legality?
And so they thought-- their intuition, which-- this is a lesson in how our intuitions are shaped by our historical and our particular political and cultural experiences. Their intuition is, well, we just don't need this institution that, in other places, is perceived, and as you say, is attacked as a safeguard of democracy.
So again, I think that the Swedish example, one of the nice things it does is it brings out some of these difficulties in working out which of the features of politics and political institutions are or are not necessary foundation stones for democracy.
WILLIAM BAUDE: Can I ask about America? And maybe, before asking about America in the 21st century, just to think about how to make sense of these things, I've been trying to guess whether we should think of the Franklin Delano Roosevelt administration as democratic backsliding or not. It seems like it has-- obviously, it was a popular, in some ways, populist economic movement that did a lot of great things for the country. But it has some of the features that you both have identified.
You see an institutional transformation in the norm of how often presidents run for election, not a formal violation of legal rules, but the first time somebody holds office for more than two consecutive terms. You certainly see assaults on the court that don't entirely succeed. But some of them succeed on the margins. And if we're applying Aziz's test of, is it realistic to imagine people are going to change their minds? I think the answer would be no. The Roosevelt-- the New Deal policies in the Roosevelt administration seemed locked in, no matter what.
So on the one hand, it seems like that might count as democratic backsliding, in hindsight. But that also seems counterintuitive. So I don't know what your reaction is.
SUSAN STOKES: Yeah. To be honest, I'm not sure. And I would really want to look very closely at the various dimensions of institutional attack to have a really solid answer to that question.
WILLIAM BAUDE: Yeah.
SUSAN STOKES: I mean, the threat of court packing, how much could that have been realized, as opposed to a kind of stratagem for getting some changes that he wanted? I'm not really sure. Another candidate case that one would want to look at closely is Richard Nixon in the Watergate era. I think there are the attacks on the press, many of the norm-breaking and actually law-breaking actions. That's another instance.
I mean, in terms of internationally, historically, our hunch is that the 1930s was a period of another wave or wavelet of democratic backsliding. And that's worrisome because the outcomes were not good at that time. But I'm not sure if Aziz has a-- may have a better sense of the Roosevelt era. But I would certainly look-- in fact, we do have a project underway to try to move this identification of cases of backsliding in the US and elsewhere backward in time, because we have been very focused on the 21st century. And the Nixon era and the FDR era are definitely places to look.
AZIZ HUQ: One of the things that's striking about the FDR period and the '30s in general that gives, I think, some force to the question is, there were people in Roosevelt's circle who looked, at some extent, to the German example, but to the Italian example, as I understand it a little bit more, and said, hey, this is what we should do.
And so I believe that was true for Walter Lippmann. So there is, as you say, Sue, in the air at the time, a sense that democracy has exhausted itself and that, as a way of organizing our society, it has come to a close.
I am not persuaded by the argument that the '30s in the US are a close case of democratic backsliding. I would draw a distinction between two different states of the world. I draw a distinction between a state of the world in which people do not have the ability to change their mind and a state of the world in which they have the ability, but they don't change their mind. And they don't change their mind because a government is particularly successful.
I think that there are many things that governments do that count as policy successes and that have the effect of entrenching that regime in power. This is a point, I think, most effectively made by a political scientist, Paul Pierson, in a really terrific book called Politics in Time, where he identifies the way in which-- one of the ways in which you are successful if you are a democratic politician is that you create the circumstances of your own coalition being preserved over time.
So I think that that is a phenomenon that leads to stability in office. But I think it is a different phenomenon from the one in which, for formal reasons, for reasons related to the design of institutions and the ways of translating preferences into choices, there is an inability of people to change their mind.
And without taking a view about Roosevelt's court packing plan, it's hard for me to see a connection between the jurisprudence, the body of case law that Roosevelt and his advisors were kicking against-- it's hard to see a connection between that set of rules and the project of democratic self-realization. You can kick against the courts because they're bad in a multiplicity of different ways.
One of them might be, courts are instrumental in the protection of democracy. And if that's the case, if you're rolling back judicial independence, then perhaps you're engaged in a backsliding project. But in many jurisdictions, our colleague Tom Ginsburg has shown-- there's a terrific recent work by a man called Rand Herschel that shows the same thing-- constitutional courts, or courts in general, are put in place not as protections of democracy. They're put in place as ways of protecting the elites that gave up some power at a moment of transitions into democracy. I believe your colleague Michael Albertus has work that resonates with that claim.
And if that's the case, if courts are protecting historical elites, and you see courts being pushed back against by a democratically elected government, I think it's overhasty to rush to the conclusion that what that democratic regime, what that elected regime is doing is trying to backslide or entrench itself.
SUSAN STOKES: A good example of the case of a government running up against the courts because the courts are protecting democracy, or running up against the courts because there's opposition in the executive branch to the court's actions to protect democracies, goes back to Mexico, we were talking about before, where the López Obrador attacks on the courts came in the wake of their resisting the changes that he wanted to make to the election administration body, which would have made elections less of a moment of democratic accountability in that country.
WILLIAM BAUDE: All right. And so what about today? Maybe Aziz is going to say, we just don't know if we're in a moment of democratic backsliding today until we know what happens in the future. But--
SUSAN STOKES: No, he's not going to say that. He isn't going to say that. [LAUGHS]
AZIZ HUQ: Yeah. Well, I think that the objective measures, including the work that Sue and her colleagues at Bright Line Watch have done, has shown that the quality of American institutions, democratic institutions, has declined over the last, what, 10 years? 15 years?
I see no reason to expect that decline to abate. I see good reason to think that it's accelerated. And consistent with Sue's point about uncertainty, I think it's really hard to know when we've reached the point of no return. I frankly don't know whether that point has been reached or might be reached in the near term. But it doesn't strike me as implausible or incredible to say, even today, that we may have reached that point.
SUSAN STOKES: We used to use terms like "stealthy," and "hidden," and so forth, when we talked about democratic backsliding. And now, somehow, when we think about the United States, those terms don't seem to apply. It seems that we're in a moment of open assaults on democracy, at least in terms of the intentions and actions of the executive, the executive branch.
We have a situation of a fully autocratic style of governance from the executive branch, operating in a system that's still democratic in many ways. We're still a democratic society. We still have popular protests, and many instances of exercise of free speech, and opposition organization, and so on and so forth. But every move and inclination from the government is quite autocratic.
So there's nothing really stealthy now. I mean, in general, these governments don't come to power saying, right, here we are. We're going to use the power to read have to undermine democracy, undermine accountability. They did it in stealthy and hidden ways. And that was quite strategic. It was good to keep everyone off balance.
But we're past that point in the United States. I don't think there's any mystery about it. I think we're in a-- I mean, I-- are we past the point of no return in that we are no longer a democratic society? No, not at all. And I'm a hopelessly optimistic person by nature. So I don't like to think about points of no return. But we are really-- I think the only way to think about it now is, we're still a democratic society, but we have an autocratic government.
AZIZ HUQ: I once had an hour-long argument with my coauthor, Tom Ginsburg, about whether we would end an article with, the glass half full, or the glass half empty. And he was very much, the glass is half full. And I'm like, no, it's half empty. And we should never say anything positive. So I want to recognize my own proclivity toward a kind of temperamental pessimism that-- maybe it's growing up in a very rainy culture. That's what does it.
WILLIAM BAUDE: Of course, the punchline is that you're both right.
SUSAN STOKES: Right.
WILLIAM BAUDE: Well, Sue, Aziz, thank you both so much for joining me.
SUSAN STOKES: Thank you so much, Will.
AZIZ HUQ: Thank you for having us.
WILLIAM BAUDE: The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression, and driven by rigorous interdisciplinary research, the project brings together leading scholars to explore these questions with depth and nuance. We hope you'll join us this summer.