Opinion: Supreme Court could hold fate of US democracy in its hands

Editor’s Note: Nicole Hemmer is an associate professor of history and director of the Carolyn T. and Robert M. Rogers Center for the Study of the Presidency at Vanderbilt University. She is the author of “Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s” and co-hosts the podcasts “Past Present” and “This Day in Esoteric Political History.” The views expressed in this commentary are her own. View more opinion on CNN.

The Supreme Court has agreed to hear two cases in the coming term that could have a profound effect on the 2024 elections. The first, Fischer v. United States, has the potential to overturn scores of prosecutions related to the attack on the Capitol on January 6, 2021. The other, Food and Drug Administration v. Alliance for Hippocratic Medicine, could effectively make medication abortion unavailable throughout the United States, regardless of its legal status in individual states. Should the Court rule against the government in both cases, it would have profound consequences: the government’s efforts to hold insurrectionists accountable could be effectively erased, and FDA approval of pharmaceuticals could be rendered pointless. These would be monumental rulings that would sharply curtail the core functions of the federal government.

Speculation aside about how the high court is likely to rule on these cases, the institution has in recent decades, broadly speaking, been an ally to the efforts to diminish democratic governance in the US. You can trace that to Bush v. Gore, which decided the 2000 presidential election, or Shelby County v. Holder, which dismantled much of the Voting Rights Act, or Citizens United, which opened the floodgates for unregulated corporate spending in elections. In recent years, those trends have only accelerated.

It’s important to keep in mind how far back this trajectory goes, especially because of a certain kind of liberal wish-casting that has been popular in anti-Trump circles since 2017. From the early days of President Donald Trump’s administration, Americans concerned about his threat to democracy have soothed themselves with some version of “the courts will save us.”

From the injunctions that stopped the first travel ban against people from Muslim-majority countries to the polls showing that a conviction in one of his four trials would cost Trump re-election, many Americans have clung to the belief that the law will work where norms have failed. Politicians might lie on the stump without consequences, but under oath they face the penalty of perjury.

Norms may have withered away, but the law remains firm, with set rules and a commitment to impartiality. And even though plenty of writers have warned that the courts may not act as the magic bastion against illiberalism, as the 2024 election approaches, the impending Trump trials have kept alive the idea of the justice system as the deus ex machina that will save democracy.

There is certainly evidence to back up some of these hopes. Judges and juries laughed the Trump team’s election cases out of court. In the two and a half years between the January 6 insurrection and October 2023, nearly 600 people charged for the Capitol attack pleaded guilty, and more than a hundred others were found guilty at trial. Seditious conspiracy prosecutions demonstrated that domestic terrorism could be successfully prosecuted as more than a series of lone-wolf attacks, and instead as a broader movement that could be dismantled and defanged.

At the same time, the Supreme Court’s taking these particular cases at this specific moment in America’s political history is a stark reminder of what the nation’s highest court has done — and not done — since the turn of the 21st century when it comes to elections and the operations of democracy. These cases aren’t about abortion and January 6 alone; for this body, with its current conservative supermajority, to hear these arguments puts on the table the question of how government operates: how it protects the functions of democracy and secures basic rights. And for all the hopes that the law might succeed where norms have failed, there is no guarantee the courts will save us. In all likelihood, they will make it harder for us to save ourselves.

The stakes of these cases may seem unrelated. After all, efforts to stop the electoral count and potentially overturn the election have little to do with FDA approval of the abortion pill mifepristone. But both cases serve as a reminder that the future of liberal democracy remains precarious, and that the courts, far from being guardians of democratic governance, have been at the forefront of the project to advance illiberalism in the United States.

Take Fischer, the January 6 case, which asks the Supreme Court to throw out convictions based on obstruction of official proceedings, which has been a key charge in the hundreds of prosecutions related to the attack on the Capitol. Even Trump himself faces prosecution under the statute as part of one of his upcoming trials.

These prosecutions have been such a core component of the government response to the insurrection — and a vitally necessary one, that a broad majority of Republican officials refuse to denounce, investigate or even acknowledge the violent assault on Congress. The broad use of the statute, often just one of many charges against January 6 defendants, has provided not only consequences for involvement in the attack but evidence that large-scale prosecutions against domestic terrorism can be successful in court, an approach that prosecutors had avoided for decades after failed seditious conspiracy cases in the 1970s and 1980s. Should the Court overturn those prosecutions based on an unusually narrow and tendentious reading of the statute, it will deliver a blow not only to the January 6 cases but also to prosecutors’ willingness to attempt this type of broad conspiracy prosecution.

The mifepristone case likewise poses a real threat to basic rights in the United States. The logic of the Dobbs decision, reinforced both by the majority opinion and Republican legislators, was that Dobbs did not outlaw abortion, but rather returned the decision about abortion’s legalities to the states, and thus the people. This premise, cloaked as an effort to extend democratic decision-making, has proven laughably false in the year and a half since Dobbs was handed down. While a ruling that effectively ended medication abortion for an extended period of time would almost certainly help Democrats in the 2024 elections, it would endanger the life and health of hundreds of thousands of pregnant Americans.

Whenever abortion access appears on the ballot, voters turn out en masse to protect access to reproductive health care. That, in turn, has led Republican legislators to reach for any possible mechanism to overrule or thwart the will of the people they represent, from efforts to nullify elections that protect abortion rights, bar further ballot initiatives, or make it harder to amend state constitutions. Rick Santorum, a former Republican senator, summed up the party’s antidemocratic position after an Ohio referendum enshrined abortion rights in the state’s constitution: “Thank goodness that most of the states in this country don’t allow you to put everything on the ballot because pure democracies are not the way to run a country.”

And on this, he is partially right. Basic rights shouldn’t be on the ballot; they should be protected by the Constitution and the courts. The only reason they’re on the ballot is because the court withdrew its protection for those basic rights. As it did, it has created space for lower courts to likewise abridge fundamental rights to bodily autonomy. That was the case in Texas, where Kate Cox, a pregnant woman carrying a fetus with fatal anomalies, was denied access to an abortion that could safeguard her ability to have children in the future. The Texas court ruled that she had not met the state’s strict standard for abortion access; the state’s attorney general quickly notified the state’s hospitals that if they provided Cox the necessary procedure, they would face prosecution. So much for courts as the bulwark of democracy.

Courts have played a key role in accountability in the years since Trump’s election. But they are also at the forefront of the transition to illiberalism in the United States — something we cannot lose sight of as we enter 2024. Nor is it only the Supreme Court, with its attacks on voting rights and reproductive autonomy. An entire network of lawyers, attorneys general and judges are working to ease the path away from democratic governance in the United States. And while the courts may deliver some wins in the coming months, it’s important to remember that not only will institutions not save democracy, in many cases, they are actively working against it.