How the 'politicization of the courts' is used to 'erode democracy': analysis

13 September 2024

Critics of former President Donald Trump have been debating the shape that authoritarianism would take in the United States if Trump defeats Vice President Kamala Harris in November and the Heritage Foundation's Project 2025 agenda is carried out.

Some critics have predicted that Trump would embrace the fascist model favored by Gen. Francisco Franco in Spain, Gen. Augusto Pinochet in Chile and Alberto Stroessner in Paraguay. But other critics have argued that Trump 2.0 would favor a more subtle brand of authoritarianism along the lines of Prime Minister Viktor Orbán's so-called "illiberal democracy" in Hungary — where checks and balances have been greatly eroded but technically, voting rights still exist.

In a podcast discussion for The Atlantic's "Autocracy in America" series, hosts Anne Applebaum and Peter Pomerantsev stress that capturing the courts is one of the ways in which authoritarians undermine democracy and advance their agenda.

"In a democracy," Applebaum explains, "we have something called rule of law, and that means that the law exists independent of politics. There are lawyers. There are courts. There are prosecutors, who at least, in theory — they are trying to legitimately find out who's broken the law, who's guilty, who's not guilty…. whereas in a dictatorship, that’s not what the law is for. The law is not to find out what happened. It’s not to establish the truth. It's not to find out who's guilty and who's not guilty. The law is to pursue politics by a different means."

Applebaum warned that democracy can be eroded by "the politicization of the courts." And Pomerantsev agreed, telling her, "What I find so worrying in America is that people actually feel, already, that the justice system is politicized."

Pomerantsev continued, "They already feel that there's a red justice system in one place and a blue justice system in the other. And when people talk about the dangers of democracy being eroded in America — when I hear that from so many Americans — that's when I get really worried because if you can't get anything above politics, that's a very, very dangerous place."

Applebaum added that in "nondemocratic systems," the law "is about punishing political enemies with absurd cases" and "about justices not thinking about themselves as justices but as bureaucrats trying to climb a greasy pole."

Listen to The Atlantic's full podcast at this link.

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