The Role of Courts in the Democracies Transitioning to Autocracy

The Role of Courts in the Democracies Transitioning to Autocracy

“Only I can fix it.”

In democracies, courts are the guardrails for institutional survivability. For autocracies, whether through some purported party or religious force usually topped by a “strongman,” courts are dictatorial implementation enablers but do not provide the “checks and balances” that ensure personal rights in the face of abuse of power. For nations that have never experienced a sustainable democracy, a brutal judicial system (evidenced by a police state) and a military force dictate judicial outcomes. In the People’s Republic of China, “communism” is the purported party guiding force, but is controlled by a rubber stamp legislature (not popularly elected but supposed to be the protector of the people – the Politburo) under the boot of a severe autocrat. Indictments and trials are subject to Party control. In Russia, there are lots of political parties, but they are all Putin-supporters who understand the penalty for non-compliance. Courts follow Putin’s dictates.

We’ve seen democracies rise and fall throughout modern history. After France attempted to mirror the American revolution in 1789, the guillotine-enhanced bloodbath was soon usurped by the ascension of Emperor Napoleon Bonaparte. In the pre-WWII Spanish Civil War, efforts toward popular governance were soon replaced by the brutal Franco regime. Germany had Hitler, taking advantage of the WWI reparations (championed by France) that destroyed daily life for that nation. Italy looked for easy answers with Mussolini. In 1979, a repressed Iranian state, under the American-supported Pahlavi monarchy, succumbed to a “Government by God” revolution, mirroring the “divine right of kings” that defined the Middle Ages. And so many more.

But the fascinating 21st century rise of democratically elected autocrats – from Turkey’s Recep Erdogan, Hungary’s Viktor Orban, Russia’s Vladimir Putin, etc. – and the rise of nationalist rightwing parties even in traditional European democracies (like Marine Le Pen’s National Rally party formerly the National Front in France, PM Giorgia Meloni’s Brothers of Italy, the Alternative for Germany rightwing Eurosceptic populist party that won the second-most seats in parliament, etc., etc.) threaten democracy itself.

Although structuring a constitution has been on the table in Israel for a long time, its courts have built a body of quasi-constitutional laws that seemed to fill the space. But PM Benjamin Netanyahu and his rightwing coalition (Israel’s parliament – the Knesset – is unicameral), even before the Gaza debacle, were attempting to subject its Supreme Court to being overruled by parliament; allowing Netanyahu to escape his corruption trial.

Today, democracies face rising challenges. Many nations looked to the economic miracle of centralized power in China as to why autocracy was a greater problem-solver and growth builder over a shorter time span than democracy. That China’s model is unraveling is only a recent development that will take decades to appreciate. This is why President Xi Jinping has resorted to saber rattling (with meaningful threats) to rally and distract his nation.

For those elected to power who evolve into dictators, that transition is not an unexpected result; it is what most of those who elected that autocrat wanted to happen. Whether it is simply outsourcing a voter’s opinion to an autocrat to deal with confusing complexity or desiring a radical new direction where those who are “deemed” the cause of contemporary “misery” (blame is essential) are eradicated, one way or the other, having a strongman “problem solver” is the goal.

Donald Trump’s proclivity toward megalomania combined with assembling a very vast following of Americans feeling disenfranchised, alienated and ignored… being passed by what they perceive is a wave of “others”… generated a message for and according a voice to these silent Americans who have been seething for years. Blame was clearly assigned to these “others” (primarily ethnic and racial minorities) and the “deep state” bureaucracy that let this happen. The Democrats lost their way in the era of globalization, where they sided with open trade and expanding international markets as many in the working class found their livelihoods slipping away.

Trump’s election in 2016 surprised everyone except the disenfranchised. A very corrupt President understood that his maximum survivable power happened to jibe with a rising religious fever – those with the strongest opinions in the land – and that the reality of powerful lifetime appointments to the federal bench was the key. His federal appointments have delivered, probably beyond his wildest dreams. Even a Supreme Court with rightwing justices slorping at the trough of “political gifting,” rewarded the religious right with the removal of Roe v Wade, white power brokers could revel in the repeal or limitation of voting rights and gun owners where able to compete with shock troops equipped with military grade assault weapons.

As forum shopping towards Trump-appointed judges, which Dems are trying to stop, accelerated, the expertise of federal agencies was disemboweled, powerful wealthy elites were able to challenge environmental and consumer protections under federal rules, efforts toward diversity were stopped, state classrooms were able to replace factual history with sanitized revisionist substitutes that favored rightwing dogma, and Donald Trump himself was accorded delays in his federal criminal trials (delays having been Trump’s patterns of “victory” for decades) so that the electorate would not be influenced by any proof of his criminal responsibility for the Capitol attack, the attempt to stop or reverse ballot results or his flagrant misuse of classified documents. Any consequences would have to wait until after the November election – which he already is suggesting is rigged against him (hinting at a massive violent “bloodbath” that would result if he lost) – at which time he believes he could eliminate those indictments… one way or the other.

Trump – openly wanting to be a “dictator for a day” – is backed by the ultra-right Heritage Foundation, having already vetted thousands of Trump-favoring populists for presidential appointments to federal agencies – that ensures a dramatic dismemberment of guardrails peppered throughout our government. For those who tell us that this may be our last free election, believing that would be enough to prevent Trump’s reelection, they do not understand that this is precisely what his immutable base wants. And if the history of autocracy and the necessary structures that come with that form of governance are any indication, reversing autocracy can take decades… or more.

I’m Peter Dekom, and while I may be too old to suffer most of the consequences of such a guardrail killing autocracy, I fear for my son, his wife and my granddaughter.