From the rotting soil grows the poison ivy: The Supreme Court and the legitimation of Herrenvolk democracy

Abstract

AbstractIn recent years, the Court has swung sharply to the right but has thus far declined to support the most antidemocratic and radically authoritarian agendas of the Trumpist wing of the Republican Party. While scholars and concerned Americans have focused on the visible things the Court is dismantling and fretted about its potential for enhancing constitutional rot, this article sketches out what the Court is building. It illustrates that this constructive process is distinctive not just in its political and partisan orientation but also in the Court's capacity to achieve it. Considering the emerging product of its recent jurisprudence suggests an embrace of a narrowed form of democracy that empowers a subset of political actors to build their idealized visions of the state, primarily at the subnational level.