Courts Against Constitutional Capture

Abstract How can courts best help keep constitutional democracy alive? When institutions of constitutional democracy are being captured and turned to creating a different kind of government, decisions of uncaptured courts are uniquely situated to serve as rallying points for democracy’s defenders. This article draws a roadmap for strengthening courts’ prospects of success in protecting a democratic constitution under threat. Courts can strengthen judicial power to protect constitutional democracy in two key ways. First, courts can interpret the constitutional scheme to distribute legislative and executive powers more among people. It is harder for anyone in government to defy court orders that draw boundaries when other power holders benefit from those boundaries. When someone in government is attempting constitutional capture, courts can decide disputes in ways that strengthen countervailing power centers. Second, courts can decide disputes in ways that cultivate a backstop of public support that other participants in government cannot afford to ignore. Through case studies of past confrontations between courts and would-be constitutional capturers, this article identifies modes of judicial reasoning and other features of judicial decision-making that help courts distribute power, grow public support, and navigate the perilous terrain of constitutional capture. The article also draws on comparative constitutional experience to identify future constitutional reforms that would even better secure courts’ capacity to protect constitutional democracy.