Eric Posner, professor at the University of Chicago Law School, spoke to the Project Syndicate on the political developments in the US especially after the Biden administration took over:
Project Syndicate: You’ve written that a right-wing Supreme Court is a major headwind for Joe Biden’s administration. But increasing the number of seats, you warn, is a “favored tactic of despots,” and Franklin D. Roosevelt’s attempt to use it “caused lasting political damage to his presidency.” Biden has now created a commission to examine a number of possible reforms, including introducing term limits for justices. What changes, if any, could mitigate the risks to Biden’s political agenda from an ideologically hostile Supreme Court while preserving America’s constitutional order?
Eric Posner: The Supreme Court will not be reformed. There just isn’t sufficient political support. Biden convened the Commission to buy time, not to reform the Court.
If I could wave a magic wand, the reform I would like to see is the creation of a procedure so that Congress could overturn Supreme Court decisions with a supermajority or some similarly reasonable hurdle. Term limits are not a bad idea, but will not by themselves solve Biden’s problems unless they’re applied retroactively to sitting justices, which is not going to happen.
PS: You recently observed that the office of the US presidency has grown only more powerful – primarily, it seems, because the public wanted that outcome. The obvious danger is that another leader like Donald Trump – whom you have called “reckless, irresponsible, and a menace to the public” – could emerge. While you say Biden should use the full power of his office (not least to reverse Trump’s actions), how will we know when the trend toward an “imperial presidency” has gone too far? To what extent could the left’s effort to expand voting rights mitigate this risk?
EP: The best evidence that the presidency is too powerful is the use of the office to suppress political and partisan opposition. At the extreme, this would include actions like media censorship and the jailing of journalists and political opponents. If the US ever reaches that stage, we are in deep trouble. But I don’t think we are close to it. The expansion of voting rights wouldn’t necessarily reduce the risk of an imperial president, but it might.
PS: You have downplayed Republican efforts to challenge the 2020 election results. “While many Republican voters tell pollsters that the election was stolen, hardly any of them have taken to the streets or pursued tactics that one would expect from people who truly believe that democracy has been subverted.” But, though there has been no “Hong Kong-style uprising,” the GOP has doubled down on the “lost cause” narrative. They recently ousted Representative Liz Cheney from the House Republican leadership for challenging it, and GOP-controlled state governments are enacting a raft of laws that will make voting harder. Are you as sanguine about the GOP’s challenge to the integrity of US elections today as you were immediately after the election?
EP: I am less sanguine than I was before, but I would like to reserve judgment for now. Let’s see how many of these laws are enacted, to what extent they survive judicial scrutiny, and what practical effect they have. Some of the laws will backfire, hurting Republicans more than Democrats.
By the Way…
PS: Last year, Democratic House Majority Leader Nancy Pelosi said that the US “needs a strong Republican Party.” But does it? With the GOP tying itself ever more closely to Trump, even adopting a political program at its convention last summer that was little more than a statement of personal fealty, is there a credible case to be made for a new party?
EP: To replace the Republican Party? I’m not sure it matters whether the Republican Party reforms itself or, like the Whigs in the nineteenth century, vanishes and is replaced by a new party. I suppose it’s possible that the Republican “brand” has become so poisonous that competent people will keep their distance from it. Yet the Democrats have overcome their legacy of support for Jim Crow, so the Republicans can probably overcome the legacy of Trump. But if Pelosi means merely that we need to maintain a two-party system, I agree.
PS: In your 2020 book The Demagogue’s Playbook: The Battle for American Democracy From the Founders to Trump, you examine precedents from US history to help identify which aspects of Trump’s presidency posed the biggest risks of long-lasting damage. Who are Trump’s American precursors, and what were the most dangerous tactics in their playbook?
EP: President Andrew Jackson, Louisiana Governor-turned-Senator Huey Long, and Senator Joe McCarthy of Wisconsin are Trump’s closest precursors among major US politicians. They accumulated power by attacking valuable, established government institutions as corrupt, exploiting and aggravating the (sometimes justified) skepticism and resentment of voters, who never like being bossed around by distant bureaucracies. These men were all also extremely mendacious, though Trump exceeds them in that respect by orders of magnitude.
PS: Last year, you and Cristina Volpin urged the European Union to take advantage of existing competition law – and possibly implement regulatory reforms – to limit labor-market concentration and abuses of labor-market power. Which anti-monopsony measures should lead the agenda, and to what extent could (and should) they be replicated in the US?
EP: For both jurisdictions, I would start with stricter merger review. Agencies should evaluate mergers for their effects on labor markets, and be prepared to block mergers that will result in even moderate increases in labor-market concentration unless the merging companies can prove that wages will increase, rather than decline.
PS: In an interview last year, you called maintaining a “public presence,” such as on social media, a “serious mistake” for law professors, especially junior faculty, who should be using the time spent tweeting to educate themselves. In fact, you note, a lot of what people say through these channels – whether about the legality of a presidential action or the accuracy of a Supreme Court case – is wrong. Is there a specific example on which you’d like to set the record straight?
EP: Trump’s travel ban is one example. Virtually all law professors claimed that it was unconstitutional. But, while there were some good legal arguments against it, the best guess at the time was that the ban was lawful. And, indeed, the Supreme Court upheld it.
But the problem is bigger than this. Virtually every time a president does anything controversial, law professors spew out tweets saying that the act was legal or illegal, constitutional or unconstitutional. They all know perfectly well that – rare, extreme cases aside – assessing the legality of presidential actions is complicated. There is rarely a 280-character answer. But Twitter lends itself to snap judgments and facile explanations. If people wonder about the erosion of popular trust in experts, perhaps this is part of the explanation.
c. Project Syndicate
