There is a widespread sense that American democracy is in danger. No form of government lasts forever, and it is foolhardy to believe that the United States cannot fall prey to the forces that have ended democracies in many other countries. The problems, to a large extent, stem from the choices made long ago in drafting the Constitution. But the situation has gotten much worse in recent years, in part because of decisions by the U.S. Supreme Court.

I discuss this threat to democracy and ideas for constitutional reforms in my new book, No Democracy Lasts Forever: How the Constitution Threatens the United States, from which this column has drawn.

Confidence in the institutions of American government is at an all-time low. The Pew Research Center has been tracking public trust in government since 1958. It has gone from a high of 77% in 1964 to our contemporary 20%. In a poll in September 2023, only 4% of those surveyed said that the American political system “works well.” Especially individuals in their 20s and 30s are losing faith in democracy. A Brookings Institution study found that “29% of … young Americans say that democracy is not always preferable to other political forms.” Both Congress and the Supreme Court have unprecedented low levels of approval. At the same time, the country is more deeply polarized than it has been since Reconstruction. Few have the sense that the government can deal effectively with crucial issues, such as climate change or income inequality.

Although the causes of the threats to American democracy are complex, many of the problems can be traced back to aspects of the Constitution which are increasingly haunting us. The framers of the Constitution, out a distrust for democracy, wanted elites to choose the president and created the Electoral College. Never in the 20th century did the loser of the popular vote become president because of the Electoral College. But population shifts and partisan realignment have made this a regular occurrence in this century. It happened in 2000 and 2016, and it almost happened in 2004 and 2020. In the last election, if just 42,921 votes had changed in Arizona, Georgia and Wisconsin, Donald Trump would have been reelected president, despite losing the popular election by almost 7 million votes.

To secure approval and ratification of the Constitution, the framers agreed on a compromise where each state would have two senators. When the Constitution was written, the most populous state (Virginia) had 12 times more people than the least populous state (Delaware). According to the 2020 census, the most populous state (California) has 68 times more people than the least populous state (Wyoming). In the last session of Congress, the 50 Democratic senators represented 42 million more people than the 50 Republican senators.

Changes in the rules of the Senate in the 1970s have made filibusters much easier and legislation much more difficult. Now it takes 60 votes to pass any bill other than for the budget. The result is that a minority of senators representing a small fraction of the population can block any legislation. This plays a key role in why it is so difficult to enact federal legislation.

Supreme Court rulings have deflated democracy

And the Supreme Court has made the problems of democracy much worse. In Citizens United v. Federal Election Commission (2010), the court held that corporations can spend unlimited money from their corporate treasuries to get candidates elected or defeated. This has distorted our electoral system and bred cynicism.

In Shelby County v. Holder (2013), the high court declared unconstitutional a crucial provision of the Voting Rights Act of 1965 that required jurisdictions with a history of race discrimination in voting to get preapproval before significant changes in their election systems. This was a very effective mechanism to prevent discrimination in voting. After it was struck down, some states, such as Texas and North Carolina, immediately implemented voting restrictions that had previously been denied approval.

In Rucho v. Common Cause (2019), the Supreme Court said that federal courts cannot hear challenges to partisan gerrymandering. The House of Representatives was intended to be the one body created by the Constitution that was representative of the people. But partisan gerrymandering—where the political party that controls the legislature draws election districts—has become vastly more effective because of sophisticated computer programs and voter data. For example, in Pennsylvania, over several elections, the congressional elections in districts drawn by the Republican legislature resulted in Democrats receiving between 45 percent and 51 percent of the statewide vote, yet only winning 5 of 18 House seats.

All of this combines to create a serious threat to democracy. And these threats will remain regardless of who is elected president in November 2024.

But although the problems are grave, I believe that the situation is not hopeless. It is both possible and essential to cure the defects and save American democracy. There are many meaningful changes that can be done without constitutional amendments. The Senate can change its rules to eliminate the filibuster. Congress, by legislation, can end partisan gerrymandering for seats in the House of Representatives and the Supreme Court can end partisan gerrymandering altogether. The size of the House of Representatives can be increased to make it more democratic. New legislation can be passed to protect voting rights.

Constitutional amendments won’t come easy

Amending the Constitution is enormously difficult, but it’s not impossible. Virtually every flaw in the document can be fixed by constitutional amendment if there is the will to do so. Although amendments have been rare in recent decades, there have been times in American history when they have been more common.

As an example, I believe that a constitutional amendment to impose term limits on Supreme Court justices is possible. When the Constitution was written, average life expectancy was 36 years. From 1787 until 1970, the average tenure of a Supreme Court justice was 15 years. For those appointed since 1970 who have left the bench, the average tenure has been 26 years. Many of the current justices are likely to serve more than 30 years. That is too much power in one person’s hands for too long a period of time.

But I believe that term limits for Supreme Court justices, and certainly ones that would apply to the current justices, would require a constitutional amendment. It always has been understood that a Supreme Court justice has the position for life, unless the justice resigns or is impeached and removed. That is what Article III, Section 1 says: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.”

There are some theories to the contrary. One is that Congress, by statute, could keep them as “justices” in the sense that they would retain their title and salary and could sit on courts of appeals and fill in when a justice is recused. But then they are not functioning as a justice in the way it always has been understood. They are a Supreme Court justice in name only.

A constitutional amendment to impose term limits is plausible because it has had bipartisan support. In the 2016 Republican presidential primaries, three candidates—Ben Carson, Rick Perry, and Mike Huckabee—supported term limits for justices. In opinion polls, a significant majority of the American people favor this.

There also is an alternative to a spate of separate amendments: After 200 years, it is time to begin thinking of drafting a new Constitution to create a more effective, more democratic government. It does not take much reflection to see the absurdity of using a document written for a small, poor and relatively inconsequential nation in the late 18th century to govern a large country of immense wealth in the technological world of the 21st century.

It may seem strange and frightening to suggest thinking of a new Constitution at a time of great partisan division. But that existed in 1787; the Constitution was just barely ratified in many of the states. The hope would be that those involved in the process would again rise to the occasion and in any event, their product would still need to be ratified.

I do not minimize the difficulty of significant change in any of these ways. But we must face the frightening reality of the country’s future if there are not major reforms. My hope is that looking at that abyss will be the impetus for beginning to realize the need for action and start the long-term process of making it happen.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including the forthcoming No Democracy Lasts Forever: How the Constitution Threatens the United States (August 2024) and A Court Divided: October Term 2023 (October 2024).

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Constitutional Law

Did DC Circuit ‘put an asterisk next to’ decision denying Trump immunity? Court keeps case on speedy path but implies limits

By Debra Cassens Weiss

February 7, 2024, 12:49 pm CST

The prosecution of former President Donald Trump for trying to overturn the 2020 election could stay on a speedy path as a result of deadlines set Tuesday by the U.S. Court of Appeals for the District of Columbia Circuit.

The appeals court said Trump must file any request for a stay of its immunity decision with the U.S. Supreme Court by Feb. 12, report the Washington Post, CNN, Just Security and the New York Times.

If Trump instead seeks a hearing before the full appeals court, the case can still return to the trial judge after Feb. 12, the appeals court indicated.

The appeals court’s Feb. 6 opinion held that Trump’s alleged efforts to overturn the 2020 election were not part of his official duties, and he did not have immunity.

“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results,” the D.C. Circuit said. “Nor can we sanction his apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”

The appeals court concluded that the interest in criminal accountability outweighs the potential risks of chilling presidential actions. The D.C. Circuit cautioned, however, that its analysis “is specific to the case before us.” In the eighth footnote, the appeals court added, “We do not address policy considerations implicated in the prosecution of a sitting president or in a state prosecution of a president, sitting or former.”

A columnist for the Washington Post noted the “specific to the case” wording and concluded that the appeals court is “trying to put an asterisk next to its ruling. It is hinting—as the Supreme Court hinted in Bush v. Gore—that this is an extraordinary case and that in other cases, the same logic might not apply.”

The per curiam opinion was written by Judge Karen LeCraft Henderson, an appointee of former President George H.W. Bush, and two appointees of President Joe Biden, Judge J. Michelle Childs and Judge Florence Y. Pan. Biden had once considered Childs for a Supreme Court nomination.

If Trump asks the Supreme Court to hear the case, and the high court agrees, the Supreme Court could act quickly, or the justices could take their time, the New York Times reports.

One possibility is for the Supreme Court to grant the stay, with or without limitations. If there is no time limit, Trump would have 90 days to file a cert petition, according to Just Security. Or the Supreme Court could place a time limit on the stay, which would dissolve unless Trump files a cert petition within the time period.

Another possibility is for the Supreme Court to treat a stay application as a petition for certiorari and grant immediate review.

“We consider this a more likely option,” according to Just Security.

If the Supreme Court requires expedited briefing, oral arguments could be in March, and an opinion might be issued a month later, the blog said.

If Trump loses and a trial happens in July, it could conclude by October.

“Of course, it is within the Supreme Court’s power not to enforce an expedited appellate schedule,” Just Security pointed out. “If so, they could conceivably wait until the end of this year’s term in late June to issue its decision. Under that approach, the trial would not begin until approximately Oct. 1 and would not conclude until around Jan. 1, 2025.”