Law in the Time of Constitutional Rot

Abstract

In periods of advanced constitutional rot, judicial decisions become especially polarized. Judicial majorities tend to reach decisions that increase economic inequality, shrink the electorate, and help maintain political oligarchy. Members of the dominant party want judges to help them stay in power, to support politicians’ self-entrenching behavior, to defend and protect politicians from charges of corruption, and to enrich their financial supporters. As a result, the judiciary tends to be part of the problem rather than part of the solution. Ordinarily, the US Constitution relies on the judiciary to protect democracy and republican government, and to prevent political corruption and self-entrenching behavior. But in periods of advanced constitutional rot, the Supreme Court and the federal judiciary are likely to be ineffective and may even make matters worse.