Is Democracy Still Doomed? If So, How Bad Will Things Become?

by Neil H. Buchanan

My life has recently been dominated by extraordinary events, some heartbreaking and others validating, so it seems a good idea to try to return to something like normal.  Unfortunately, what has counted as normal for me over the last seven years has been to provide commentary about the ongoing decline and fall of the American experiment.  While I have been otherwise occupied over these last few months, has anything happened to offer some hope that this country's descent can be arrested and maybe even reversed?

There have, I am pleased to say, in fact been more than a few heartening developments on the social and political fronts.  Unfortunately, the larger story is that the tide is still not going to be turned.  My goals in this column are to explain why there is still every reason to think that our slide into autocracy will continue (if not accelerate), and then to offer a few thoughts about just how bad things will become.
At Dorf on Law, we occasionally joke about who is the most pessimistic among Professors Dorf, Segall, and Buchanan.  My competitors are capable and insightful, but I bow to no one.

The fundamental issue facing the United States is that the Republican Party is no longer committed to constitutional democracy.  That is bad news indeed.  The good news?  Having watched in dismay for years as most Democrats and independents denied that things are as bad as they are, I now see that more and more people are beginning to admit that those of us who were once dismissed as alarmists are in fact right.

Most importantly, President Biden finally threw off his trademark caution and decided to make the midterm elections all about Republicans' un-American extremism.  And when he described the Trump cultists as "semi-fascist," the response from most non-MAGA commentators was some variation on this quip: "I think Biden was wrong to say what he said.  There's nothing 'semi' about it."  Even six months ago, that would have been unheard of in polite society, with even the most left-leaning observers often pulling their punches.  It is a hopeful sign that there are now so few Pollyannas to be found.

Not only have the self-imposed blinders come off, but the public seems to be responding.  They are appalled by the Dobbs decision and what it did to women's freedom, and polling more generally is showing that the public is finally catching onto the importance of protecting democracy.  That is, whereas it looked for the last year or so that "but I don't like inflation" would be the proximate cause of the end of democracy (even though inflation was not at all Biden's or the Democrats' fault), there seems now to be genuine alarm among the public at large that we are on the edge of political oblivion.

Along with all of that, Biden and the Democrats have been able to point to genuine accomplishments and a reversal of some bad trends, allowing them to imagine that even the voters who care about "pocketbook issues" might be reachable.  Moreover, Republicans' responses to all of these developments have continued to amount to trolling, featuring operatic claims that "Biden just insulted millions of Americans," that things like student-debt relief are elitist, and so on.  (As usual, the uber-troll is the junior senator from Cancun.)  Trump, meanwhile, continues to put himself on the ballot, which is never good for Republicans.
And yes, the polls for the midterms are starting to show signs of life for Democrats.

Two years ago, however, it looked not only as though Trump was going to lose the presidency but that it was going to be a rout.  Polls had Biden ahead by five to ten points in Florida, for example, and even Texas seemed to be in play.  There was serious reason to think that Democrats would pick up a large number of House and Senate seats, with even Mitch McConnell and Lindsey Graham (much less Susan Collins) seen to be in serious danger of losing.  So much for all of that.

This year, although the current atmosphere favors Democrats, the latest polls show that Republicans are at least within striking distance in too many places.  Even Stacy Abrams is running two points behind Brian Kemp in the Georgia governor's race.  Only the most cockeyed optimists think that the Democrats can hold the House, especially in light of the Supreme Court's requirement that even unconstitutionally gerrymandered districts be used in 2022.

Other than pulling the ultimate inside straight, then, the optimistic version of the immediate future is that Democrats will expand their lead in the Senate while losing the House.  If the latter happens, all the talk about finally getting rid of the filibuster (by neutralizing Joe Manchin and Kristen Sinema) becomes meaningless.  Most importantly, any effort to expand the size of the Supreme Court becomes a nonstarter, as that would require legislation (passed by both houses and signed by the President), not merely a change in Senate rules.  And honestly, we would almost surely have seen people like Maine's Angus King and a few others suddenly get cold feet on such big-ticket items.

One might think that having a Democratic majority in the Senate would at least prevent a bloodless coup from happening on January 6, 2025.  That is, if the situation then resembles the situation after the 2020 election, it would still take both houses of Congress to refuse to certify the Democratic candidate's victory.  In 2021 it was the Democratic House majority that made that unthinkable, whereas in 2025 it would seem to be a Democratic Senate that could save the day.

The problem is that the Senate that is elected in November 2022 will not be the Senate that votes to certify the 2024 results, because a new Senate will have been sworn in on January 3, 2025.  That is, Democrats (who face a very unfavorable map in the 2024 Senate races) will have to win the majority not in 2022 but in 2024 to prevent increasingly radicalized Republicans from using the January 6 ceremony to guarantee that the Republican presidential candidate will be declared the winner.

Oh, and because the McConnell-twisted Supreme Court will not have been neutralized, at least five members of that court will have endorsed the Independent State Legislature theory and will then refuse to stop Republican-led state legislatures from sending their own slates to the Electoral College in December 2024 (making the January 6, 2025 scenario unnecessary).

In short, none of the larger problems that face the country have been reversed in the last few months -- even if one believes (as I clearly do not) that the recent trends are going to lead to good midterm results for Democrats.  At best, we will have a deadlocked Congress that cannot even pass must-pass legislation, while Republicans in the House launch endless investigations of Merrick Garland, the FBI, and on and on.  And that merely gets us through the next two years.

Frequent readers of Dorf on Law will recognize that my column today amounts to an update on the themes that I have been hammering home for years.  That is, I am not saying that there are any new reasons to believe that the end is nigh, but it is important to ask whether any of the longstanding reasons for pessimism have abated (at least enough to make a difference).  And the short answer is that none of the pro-democracy news is nearly sufficient to undo the results of gerrymandering (at the state and federal level), voter suppression, court packing, and every other minoritarian aspect of our system.

Even though the updated prognosis is "still doomed," however, there is still the question of how bad things will become after it all falls apart.  And it is there that things are looking truly dire.  Most Republicans are trying not to say anything about Lindsey Graham's effort to federalize anti-abortion law, just as they are pretending that some of their colleagues have not proposed ending Social Security and Medicare.  But once they have locked down the levers of power -- especially after they guarantee that they cannot lose future elections -- there will be no reason to hide.  On matters of policy like abortion and budgeting, all bets will be off.

What worries me most, however, is not Republicans' plans for substantive policies, as much as I oppose their goals.  The evidence of the past two months makes it nearly impossible to believe that Republicans and their next president will show any restraint in using the power of the federal government to punish their enemies.  Their response to the FBI's legal search of Trump's Florida resort has been to accuse the Democrats of doing something that Republicans will eagerly do: "weaponize" federal power.

It was never much in doubt that Trump and the Republicans would, upon retaking power, abuse the criminal justice system.  Now, however, they are using the Mar-a-Lago "raid" as cover for the idea that they would merely be doing what the Democrats did first.  Trump and his minions were barely under control before, and one shudders to imagine what they will do if given another chance.

Biden and the Democrats are showing more fight than I expected, but the die is cast.  And their opponents are become more aggrieved every day, promising payback.  What will stop them?