The Supreme Court is corrupting American democracy

One cannot hope to bribe or twist/ (thank God!) the U.S. chief jurist

If I wanted to write a cute post today, it would be about the Balogun red card reversal as a synecdoche for Trump’s corrupting influence. And there is a way in which it provides a useful metaphor for something broader. But I’m going to be perverse and contrary, and leave that until the end. After all, the purpose of this newsletter is not to woo readers with up-to-the-minute takes. If we want to really understand corrupting influences, we can’t just look at Trump. We want to pay attention to the current Supreme Court majority too.

You can make the argument that the Roberts Court is a corrupt institution if you want to. Instead, I want to put the motivations of the individual justices, Roberts included, aside, and make the importantly different claim that it is a corrupting institution. Specifically, the last two decades of Supreme Court jurisprudence have tended systematically to corrupt American democracy across a variety of related issues: campaign finance (including last week’s decision), presidential immunity, and, of course, the prosecution of bread-and-butter political corruption.

To understand this, you need to think more systematically about the relationship between democracy and corruption. The best way of understanding this relationship that I know of is laid out in an academic article that was published the year before John Roberts was named Chief Justice, Mark Warren’s “What Does Corruption Mean in a Democracy?" Here goes.

**********

Mark taught me political theory when I was doing my Ph.D. (I still remember, and regularly quote, his off-the-cuff dictum that Weber’s essay, “Politics as a Vocation,” concealed “diamonds of Nietzschean brilliance in a great bowl of sociological porridge”). His article on corruption starts from the insight that our current understanding of corruption is both too expansive and too limited.

To understand corruption properly, we shouldn’t think of it as an individual level phenomenon. Classical thinkers, like Machiavelli, understood corruption as a condition that could afflict governments and indeed societies. But if we value democracy as the best way to order our affairs, we should understand corruption as not a moral phenomenon but a political one, which involves the corruption of democratic processes.

Specifically, we should understand corruption as involving what Mark calls “duplicitous exclusion.” The most fundamental norm of democracy is “empowered inclusion of those affected in collective decisions and actions,” so that “every individual potentially affected by a decision should have an equal opportunity to influence the decision.” This implies equal power: people should be provided with “individual participation in collective decisions, such as the right to vote.” People should also have equal voice: “equal chances to influence public judgment, actualized in rights and effective opportunities to speak and to be heard in those deliberative processes that define the agendas, choices, and public framing of issues.”

What that suggests is that “the norm violated by corruption is that of inclusion in collective decisions and actions of all affected.” Corruption is not just exclusion, but duplicitous exclusion.

Corruption does not imply normative disagreement fought out in public, but rather a corrosion of public norms by those who profess them. Corruption involves hypocrisy. For an elite (or group or individual) to be corrupt in the democratic sense, it must both profess and violate the democratic norm of inclusion. Thus, corrupt exclusion is distinguished by duplicity, a characteristic that implies not just the possibility of condemnation, but also the possibility of immanent critique: the corrupt can be called to account by their own standards.

It furthermore involves some benefit that is shared by insiders at the expense of some or many outsiders. Such duplicitous exclusion directly corrupts democracy, even when it is facially harmless.

it is the fact of exclusion and the duplicity of justification that corrupts democracy, whether or not specific harms can be identified. What suffers [from] corruption are the political processes and institutions that would, ideally, expose and limit potential harms by including those affected in making collective decisions and organizing collective actions. Importantly, because a democratic conception of corruption focuses on processes, it also highlights institutionalized corruption. Duplicitous corruption can become routine within institutions, usually in the form of dual cultures, one of which pays lip service to the norms of democratic inclusion, and the other which facilitates and justifies corrupt exchanges.

**********

Mark’s article describes how courts and judges can become democratically corrupt. Again, I want to put that to one side.¹ Instead, I think it is useful to ask whether the Supreme Court, as its majority is currently constituted, is democratically corrupting. The answer, under Mark’s definition, is an unqualified yes. And what is useful about Mark’s approach is that it shows how apparently quite different lines of Supreme Court jurisprudence are mutually reinforcing. Across various dimensions, they systematically corrupt the democratic process.

Consider, for example, the line of jurisprudence that has culminated in last week’s decision to overturn limits on the amounts that political parties can spend in direct coordination with candidates. The practical consequence of this is to undermine limits on campaign contributions. In his opinion for the majority, Kavanaugh claims that:

under the Supreme Court’s current campaign finance cases, the only rationale for campaign-finance restrictions is to prevent “quid pro quo” corruption – that is, “contributions in exchange for official action.” … there are other measures in place to prevent such circumvention that do not restrict speech in the same way that the coordinated-expenditure limits do, Kavanaugh emphasized: the base limits on contributions, federal laws that treat “earmarked” contributions as contributions to a candidate, and federal disclosure laws. … most states do not impose these kinds of coordinated-expenditure limits in their elections, but “‘no evidence of corruption’ via circumvention ‘has materialized.’ … Kagan argued in her dissenting opinion that the court’s ruling “ushers in the same opportunities for quid pro quo corruption that the contribution limits were meant to check.”

Properly understanding the relationship between democracy and corruption means that we should not just be worried about direct “quid pro quo” corruption. Allowing those who can afford it to make very large contributions undermines people’s equal opportunity to participate in collective decision making as well as their collective voice. It means that very rich people and organizations will have much greater say in politics than poor, middle class, or even moderately rich ones. Already, 300 billionaires and their close family members were responsible for nearly 20% of campaign contributions in 2024.

Consider too, the 2024 decision that US presidents enjoy “absolute immunity for actions that relate to “core” or “exclusive” presidential powers, [and] at least presumptive immunity for all other “official acts.” This decision has clearly empowered the current president to enrich himself in a staggeringly corrupt fashion, without any plausible means of judicial redress. But that enabling of individual corruption directly contributes to the corruption of democracy too. As Mark describes it:

Consistent with the modern conception, corruption consists in activities by public officials that depart from the norms, laws, and expectations of their offices, from which they realize gains. Government as the trustee and executor of collective purposes is corrupted. Democracy is directly harmed when people lack a collective agent they can trust to execute collective decisions because they are effectively disempowered. Indirect harms to democracy also result: corruption not only leads to inefficient and ineffective government but also produces an atmosphere that is arbitrary, permeated by differential treatment. Under these circumstances, individuals lack the securities necessary for association, pressure, voice, and other modes of citizen participation that underwrite democracy. An atmosphere in which even everyday acts of democratic participation require heroism can induce or reinforce passivity and distrust among citizens. [my italics]

In other words, the presidential immunity decision does not just make it easier for Trump to enrich himself and his cronies. It enables him to remake government into a means for exercising arbitrary power, punishing individuals, non-profit entities and corporations who oppose him, or who simply have things that he wants and refuse to hand them over. That in turn undermines the conditions for democratic association and voice.

The Roberts Court’s long term campaign to defang traditional legal protections against day-to-day corruption enables democratic corruption too. Take, for example, the landmark decision in McDonnell v. United States:

In 2014, Robert McDonnell was found guilty of eleven counts of public corruption for accepting gifts and loans from Jonnie Williams, a Virginia businessman and CEO of Star Scientific. McDonnell and his wife, owing over $80,000 in credit card debt, needed help to alleviate this debt and turned to Williams. Williams promised to alleviate this debt and in return, McDonnell helped Williams get FDA approval for his dietary supplement, Anatabloc, by attempting to persuade Virginia universities to do the necessary research so that Williams’s company would not have to pay for it. As a result of this arrangement, McDonnell and his wife received over $175,000 in loans and gifts from Williams, while McDonnell facilitated meetings between Williams and state agency officials.

The federal bribery statute makes it a crime “for a public official to receive or accept anything of value in exchange for being influenced in the performance of any official act … The Supreme Court rejected the prosecution’s argument that McDonnell’s actions constituted bribery under the federal bribery statute, concluding that McDonnell’s actions did not meet the definition of “official acts.” … Justice Roberts wrote that only formal government actions, such as filing a lawsuit or making an administrative determination, could be considered “official acts.” He went on to say that political courtesies such as “arranging meetings or urging underlings to consider a matter” generally do not constitute official acts, even if the public official receives gifts or money in exchange. The Court conceded that, although McDonnell’s conduct is “distasteful,” the Court characterized this behavior as a type of “condoned politicking,”

Again, this decision very clearly fosters democratic corruption. It actively encourages the kinds of corrupt exchange that Mark describes, in which democratic equality counts for far less than willingness to pay off politicians’ credit card debts. By relentlessly narrowing the scope for prosecution of corrupt acts, the Supreme Court is increasing the perception and the actuality of democratic corruption in American politics today.

Finally, Court decisions that nominally have nothing to do with individual corruption can be democratically corrupting. This applies to the Court’s gutting of voting provisions aimed at ensuring racial equality, which have culminated in a system where the Court is prepared to bless gerrymandering more or less explicitly, so long as it is done for partisan reasons, rather than to provide racial minorities with voice. This has, predictably, led to a gerrymandering arms race, which undermines basic political equality, by devaluing the votes of Democrats in red states and Republicans in blue ones. This, indeed, may be the most democratically corrupting line of jurisprudence that the Roberts Court has been responsible for.

**********

I don’t believe that Chief Justice John Roberts, or most of his colleagues are personally corrupt, in the sense that they are willing to take bribes [if you disagree, that’s fine, but I’ll ask you not to make a thing of it in comments, since that would miss the actual argument of this post]. However, it seems to me to be indisputable that their jurisprudence has and is doing a great deal to corrupt American democracy.

Mark Warren’s account of democratic corruption is valuable because it explains why various aspects of this jurisprudence have had this joint consequence. Across an apparently unrelated range of issues - campaign finance, executive immunity, political corruption and gerrymandering - the Roberts Court’s decisions have persistently corrupted the workings of democracy, so as to undermine equality in decision making and voice in favor of processes that are both duplicitous and exclusive. Whether this is deliberate, or the consequence of induced myopia, or some combination, is secondary. To adapt the rhyme: One cannot hope to bribe or twist/ (thank God!) the U.S. chief jurist. But seeing what the man will do/ unbribed there’s no occasion to.

There are bits of Mark’s approach that could be updated. Two decades later, it turns out that democratic corruption can be blatant rather than hypocritical. But again, its great value is in bringing the whole together.

And this, at last, brings us to Trump’s efforts to reverse Balogun’s red card. Trump himself has drawn the comparison to democracy in his characteristically perverse way.

President Trump said the U.S. team’s match against Belgium at the World Cup on Monday night will be more fair after his intervention because both teams will have a full slate of players available, and invoked his baseless claims that the 2020 election was stolen. “And we’re going to have a full team, and Belgium is going to have a full team,” he said. “And you know what? If they beat us, then they can be really proud. The other way, if they beat us, we’ll say it was — I’d say— it was rigged, just like the election was rigged in 2020.

Just as the harm of democratic corruption is not individual self-enrichment but the hurt to democracy as a whole, the damage that the corruption of the red card rules will do is to soccer as a whole, weakening confidence in the sport, and corrupting enjoyment of it, regardless of who wins. So too, we should pay less attention to the specific consequences of corruption, instead focusing on the general systemic harms that it does to democracy, undermining a system that should be based on equality with one where clandestine connections and political influence don’t just matter at the edges, but corrode the basic processes that are supposed to provide some minimal guarantee of fairness.

1. it seems to me plausible that e.g. the Republican majority’s tortured justifications for creating a historically unprecedented form of presidential immunity, and for carving the Federal Reserve out of its decisions on delegation are indicative of some degree of democratic corruption. But that is a separate topic.