How will the Supreme Court's immunity decision affect U.S. democracy?

Transcript

SCOTT DETROW, HOST:

All year, we have taken some time on each Saturday show to look at former President Donald Trump's legal cases. And it's a really interesting moment right now. On the eve of the Republican National Convention, Trump seems as likely as he's ever been to return to the White House next year. And on the legal front, the U.S. Supreme Court's remarkable ruling on presidential immunity has frozen all three remaining criminal cases Trump is facing for the time being. His legal team is also asking a judge to toss out his criminal conviction in New York based on that ruling.

So this evening, we are going to take a big step back and talk to two experts on democracy about what all of this means for the country. We called Daniel Ziblatt and Steven Levitsky, the authors of the influential bestseller "How Democracies Die" as well as "Tyranny Of The Minority." And I started the conversation by asking Ziblatt about the immunity decision.

DANIEL ZIBLATT: Yeah, I guess I would make two points. One, it's clearly an effort to insulate the president and, I think, in fact, reduce the possibility of political accountability - I mean, the idea that a president can operate in a really unconstrained way, which is what the outcome of the decision was, and commit crimes and potentially get away with it is clearly, just by definition, a threat to democracy.

The second point, though, I would make is that we have to stop and ask, how did we end up in this situation, where a court is making a decision like that? And one of the things that's important to remember is that this Supreme Court that we have today, the conservative majority, was created when a president who didn't win a majority of the vote, namely Donald Trump, was elected and appointed three judges. And those judges were confirmed by a Senate that actually didn't represent a majority of Americans. This is really what minority rule has wrought on our political system today.

DETROW: You know, so much of your work comes back to these ideas of guardrails and unwritten rules as key things in protecting democracy, and Trump is campaigning very clearly about all these things that he wants to do. This is somebody who has begun many rallies with videos glorifying the people who attacked the Capitol on January 6 and says that he would pardon many if not all of them. This is somebody who says that one way or another, he will end the criminal investigations into himself if he takes office, and he will turn the Justice Department on his political opponents. Being so straightforward about that and having your party, by and large, support it ahead of time, how much does that do to the guardrails and the unwritten rules in this country?

STEVEN LEVITSKY: A couple of things. First of all, I don't find myself talking about norms and soft guardrails today or over the last five years as much as I did when Daniel and I wrote "How Democracies Die." And I think that is because we have, as a society and as polity, basically busted through those guardrails. Those 20th-century norms that we described in "How Democracies Die" as threatened have basically been shattered. Nobody expects politicians to underutilize power, and we all expect the other side to use any means necessary to win. And so I think we're at another stage of defending our democracy, which is defending the hard guardrails, the Constitution, the rule of law, free elections as opposed to norms. I think that unfortunately, that's in the rearview mirror. It's interesting...

DETROW: In your book, you said that a country is in very deep trouble when those things are in the rearview mirror.

LEVITSKY: Yeah. We're - our democracy is what political scientists used to call an unconsolidated democracy. It's no longer a democracy that is on sure footing. It's a democracy that's in danger of rupture, collapse.

DETROW: You both, in recent years, focused a lot more on kind of the big structural changes that, as you mentioned earlier in this conversation, the United States just has not addressed, compared to a lot of other countries. Given everything you've said about the backsliding of the past decade or so, curious, each of you, what is the most important structural change that you would push for if possible at this moment? Steven?

LEVITSKY: It's always hard to make these choices of single changes. But I think that...

DETROW: I mean, it sounds like a situation in which someone would be employing triage. So what would your triage list be?

LEVITSKY: Again, I'm not sure I would conflate the two. I mean, we have two different crises. There's a short-term crisis in which an authoritarian candidate is now a front-runner for the presidency. There are a whole set of steps, not institutional. We're not going to make any institutional changes before November. We need to mobilize as a society and build a very broad coalition against an authoritarian candidate. That's the triage. Until we ensure that that our democracy is on minimally secure ground, I don't think it's particularly reasonable to be thinking about institutional reform.

Once we get there, and I hope we get there soon, let me give you two reforms, and they're relatively easy ones. They're not constitutional reforms. One is a whole set of steps to make it easier to vote. The United States is one of the only democracies in the world, one, we don't have a constitutional right to vote, and two, where the government doesn't take a series of steps to make it as easy as possible to vote - so automatic registration and voting on a Sunday or a holiday. There are a whole series of steps that we could take to ensure the voter turnout is much higher than it is today. The other step I would take, and not all Democrats agree with me on this, is eliminate the filibuster because we are not going to pass other critical reforms, including voting rights, as we saw in 2021, 2022, until we eliminate the filibuster, until we eliminate the - what has become a supermajority rule for passing regular legislation in the United States.

DETROW: Daniel?

ZIBLATT: Yeah. So you know, it is important to remember the reason these institutional reforms are so critical is that part of the reason we are in the crisis that we're in is not just about Trump. It's not just about the Republican Party but our entire political system as it has developed over the last several centuries. We've stopped reforming our democracy. And as we've stopped reforming our democracy, it's made it vulnerable to the kind of attacks that we've experienced over the last several years.

And so two things that really make us an outlier in the world are, number one, we're the only presidential democracy in the world with an electoral college, and we're the only democracy in the world that has lifetime tenure for Supreme Court justices. And I think these two institutional features, as evidenced by the question from the outset, you know, about immunity - you know, when you have justices who are entirely unaccountable, of course, justices need to be independent. We don't want them kind of following the whims of democratic publics. But other democracies have figured out a way to deal with this, was which they have, you know, long terms in office, or they have retirement ages. So they're independent, but there's some limit to their power.

The United States, we suffer from the fact that we have these justices who are in power for their lives. They're not accountable in any way, and they can depart wildly from where majorities are. And so I think eliminating the Electoral College and imposing term limits for justices would be at the top of my list. Now, I understand, unlike the two suggestions that Steve made, these are much steeper climbs because they - certainly the first requires constitutional amendment. Term limits for judges probably does as well. And so this is hard work, but, you know, we've done it before in American history. And, you know, we need to be talking about this if we don't want to end up in this situation we're - again, at some point in the near future.

DETROW: That's Daniel Ziblatt and Steven Levitsky, the authors of "How Democracies Die" and "Tyranny Of The Minority." Thanks to both of you.

ZIBLATT: Thank you. Transcript provided by NPR, Copyright NPR.