How Autocrats Use Courts to Undermine Democracy: Kim Lane Scheppele on Autocratic Legalism

Understanding Autocratic Legalism

• 💡 Autocratic legalism is a strategy where elected leaders entrench themselves in power by loosening restraints on the executive branch and capturing the highest court.
• ⚠️ This process often involves subtle shifts rather than overt coups, making it harder for citizens to recognize the erosion of democracy.
• 🎯 The goal is to maintain the appearance of operating within the law while consolidating power.

Court Capture Tactics

• ⚖️ A key tactic is the swap-out of justices and changes in appointment mechanisms, as seen with irregular Supreme Court appointments.
• 🎭 Captured courts often preserve a fiction of independence by ruling in favor of the executive on crucial matters while occasionally ruling against it on less critical issues to maintain legitimacy.
• ⏳ The shadow docket is used to make substantive decisions without issuing reasoned opinions, allowing destruction to proceed before merits are decided.

Comparative Autocratic Examples

• 🇭🇺 In Hungary, the captured Constitutional Court supported Victor Orban's consolidation of power, sometimes acting on back-channel signals to achieve desired outcomes.
• 🇧🇷 Brazil's system, with its