By Andrew Cohen
Amid round-the-clock media focus on swing-state polls and the presidential betting market leading up to the election, a timely speaker series from Berkeley Law’s newest research center probed a more foundational subject: democracy and its intersection with American institutions.
Presented by the new Christopher Edley Jr. Center on Law & Democracy, the five-part series recently addressed the state of American democracy; democracy, the press, and social media; democracy, elections, and the courts; presidential power and democracy; and democracy and judicial power. Videos of the first four events can be viewed online.
With annual global ratings showing America’s democracy in steady decline — and surveys showing plummeting public faith in the nation’s governing system — center leaders see growing concerns from students and others about democratic backsliding and authoritarian rule.
“We wanted to provide a forum for serious thinking about democracy and its future at a time when democracy has felt more precarious than it has in many decades past,” says Professor Jonathan S. Gould, the center’s co-faculty director with Professor Daniel Farber. In doing so, Gould adds, “We wanted to engage the Berkeley Law community in conversation about the many challenges facing democracy and the rule of law.”
The center was established this fall and named after Edley, Berkeley Law’s dean from 2004 to 2013, who previously served in major White House positions under Presidents Jimmy Carter and Bill Clinton and devoted much of his career to improving government and democracy. New programming will be announced after the election and people can receive news and announcements from the center, now launching its search for an executive director.
Judgment days
The series’ final event, held Oct. 31, featured Berkeley Law Dean Erwin Chemerinsky and California Supreme Court Justice Goodwin Liu discussing the role of federal courts — particularly the U.S. Supreme Court — in protecting democracy. With longer life expectancies, Supreme Court nominees joining the Court at younger ages, and justices increasingly making “values-based decisions,” Chemerinsky called their appointments more impactful than ever.
He noted that Donald Trump appointing three justices in four years — the prior three Democratic presidents appointed just four over two decades — led to major recent decisions expanding gun rights, diluting the separation of church and state, overturning Roe v. Wade, and giving presidents broad immunity from criminal prosecution.
“All those decisions came out 6-3 with the same justices voting on ideological lines,” Chemerinsky said. “Had Hillary Clinton won the 2016 election, she would have appointed the three new justices and those decisions would have all come out 6-3 the other way.”
With courts designed to play a key role in enforcing the checks and balances of the Constitution, he added the upcoming election will hugely impact the federal courts of appeal — which now have the exact same number of judges (89) appointed by Republican and Democratic presidents and a few circuits whose current majority could shift.
At Chief Justice John Roberts’ 2005 confirmation hearings, he said, “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire … I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
Liu, a professor at Berkeley Law from 2003 to 2011, said the Court’s perception of its role seems to have changed since then and that those words suggesting judicial restraint and minimalism are now used against Roberts by those wary of judicial power. While originalism gains traction as a form of constitutional interpretation, Liu said originalism means different things to different jurists and will lead to “more judicial intervention in cases to come.”
Chemerinsky said constitutional law is “largely about the values of the justices on the Court,” and that the questions they address — such as affirmative action, abortion, and gun rights — are inherently values-driven. He and Liu observed that liberals and conservatives both call for judicial restraint depending on the issue at hand, and that the Court’s direction will likely make centrist judges an antiquated presence.
“For the time being, it’s unlikely that there will be more Stephen Breyers, Anthony Kennedys, Sandra Day O’Connors, or Merrick Garlands nominated for the Court,” Liu said, citing jurists known for their moderate and institutional tendencies.
As for American democracy regaining a sense of stability? “Twenty-one years ago when I first taught in this classroom, I’d say generally the American system works itself out,” Liu said. “But this last period has caused me to question whether our ordinary processes are working the way they should.”
Too much authority?
At the event on presidential power, Farber and fellow Berkeley Law professors Sharon Jacobs and John Yoo discussed the executive branch’s growing role in shaping policy and influencing federal agencies. Yoo said using criminal prosecution to drive Trump out of this year’s election failed and will likely create problematic consequences, pointing to South Korea and Brazil as examples of frequent prosecutions of presidents causing instability.
Yoo noted that Trump trailed Ron DeSantis by 15% in Republican primary polling at the end of 2022 — but his indictments and trials dominated the primary season, his opponents struggled to gain media attention, and Trump surged to 15 points ahead.
“The prosecution actually helped Trump, and I worry it’s going to cause deeper harm to the presidency and our system because I don’t think it’ll be a one-off,” Yoo said. “The founders created the executive branch so it can act with speed and sometimes secrecy, but it’s unlikely that branch will enjoy those virtues if the president is worried about after-the-fact legal liability. I think it will have a damaging effect on either party no matter who wins.”
Jacobs sounded an alarm about growing presidential power to limit the effectiveness of federal agencies, calling for more attention on this “structural deregulation” and its implications. She said techniques include hiring freezes, not filling key leadership positions, inducing retirement through buyouts or even relocating agencies which prompts employees to quit, using tools to affect agency budgets, creating busy work to divert agencies from their substantive goals, and publicly undermining confidence in certain agencies.
“These and other tools can be used to tie up agencies in a systematic way,” Jacobs observed, urging Congress to be more specific in its statutes about agency location, size, operation parameters, and staffing guidelines. “It’s creating a scenario for death by a thousand cuts. I think this kind of structural deregulation is problematic regardless of the position you take on a policy issue. It’s tough to sniff out, and there aren’t a lot of legal tools to combat it.”
Explaining the executive branch’s growing power and control over agencies, Farber argued that the benefits to this approach — greater coordination between agencies and more coherence in government policy — are at risk of being outweighed by the downsides, including undermining the role of Congress in creating policy.
“What worries me is that we kind of switched from an era where the goal was for administrative agencies to carry out their statutory missions to a mindset that agencies should carry out the President’s policies except where statutes make it impossible,” Farber said, adding that Environmental Protection Agency enforcement actions fell about 80% during Trump’s term.
“Agencies are increasingly encouraged to ignore statutory policies,” he added. “This can also further the polarization of politics if everything the government does hinges on one person and you either agree with that person or you don’t. Concentrating that level of power in one individual, we ought to be uncomfortable with that in a country that prizes the rule of law.”