July 2022. GrowthPolicy’s Devjani Roy interviewed Archon Fung, the Winthrop Laflin McCormack Professor of Citizenship and Self-Government at Harvard Kennedy School, on the fragility of democratic institutions, the U.S. Supreme Court, and the 2024 Presidential elections. | Click here for more interviews like this one.
GrowthPolicy: You study the institutional designs and practices that enable democratic governance. Since 2022 is the year of the midterm elections in the U.S., we have the seemingly implausible scenario where one of our two major political parties is committed, not to democracy but towards a winner-take-all mindset based on excluding democratic participation. Are our democratic institutions robust enough to deal with potential electoral crises? What guardrails for democracy should be put into place for red-alarm situations, should they occur?
Archon Fung: The Capitol insurrection of January 6th reminds us of how fragile institutions can be. We often think of institutions as somehow solid and durable objects, but institutions are no more than stable patterns of human beliefs, norms, and interactions. When enough people simply decide to stop behaving according to those patterns and norms, the institutions themselves change or dissolve. And what we are witnessing in America is a moment in which some leaders and many followers are changing their patterns of behavior—ejecting older norms and rules—in ways that may result in a democratic breakdown. In particular, Donald Trump and the tens of millions of Americans who purport to believe that the 2020 election was not legitimate are rejecting the organizations and methods of electoral administration, reporting, and investigation that have traditionally determined who got more votes and who won the electoral college.
No one has completely clear vision into the future, but I think that our electoral institutions may well be again seriously threatened—perhaps may even break—under pressure from future challenges. I hope that this does not happen, but it seems far more possible to me now than it did four or five years ago.
I’d like to say something about why there is so much pressure on our democratic institutions and practices now. I think that, from the perspective of human interest and passion, democracy is a miraculous achievement. Each of us has strongly held commitments about religion, ideology, policy, and fundamental rights such as a woman’s right to reproductive choice. Democracy is a process for bringing together a plural society where people have many such opposing commitments and determining who shall rule and what the law will be for a time. It requires each of us to sometimes subordinate our own deeply held commitments simply because the process says that we should do so—for instance, because the other side received more votes. That is a very demanding requirement.
The requirement is somewhat less demanding when differences in the political arena are small. But democracy—its norms and institutions—come under greater pressure when the differences between people are large. I think that the difference in policy perspectives, identities, and political commitments in America has grown very large these days. We are currently in what I have called a “wide-aperture, low-deference” time. “Low deference” means that many people hold institutions (Congress, the Courts, media, political parties) in relatively low regard and distrust them. “Wide-aperture” means that a very wide range of policy views: from Donald Trump’s nationalism and some would say ethno-nationalism on one side to Bernie Sanders’s Democratic Socialism, to Joe Biden’s desire to continue the U.S.-led internationalism of the past.
Contrast this to the relatively “low-aperture” agreement between center-left and center-right that characterized American politics in the period from roughly Ronald Reagan to the first term of the Obama administration: relative consensus on the desirability of economic and social globalization, a small-ish and not too generous welfare state, retrenched regulation, and some would say, at least in rhetoric, racially inclusive meritocracy.
Though I’m sure many would disagree, I think of much of the visible politics of the 1980-2010s occurred on one side or other of this fairly narrow range of disagreement. I remember when I started teaching at the Kennedy School in the early 2000s, I did a segment on the Universal Basic Income (UBI) as an Overton-window shifting idea. I thought then, and continue to think, that students should be exposed to many unconventional ideas in graduate school. At that time, very few students took it seriously because it was obviously (to them) incompatible with economic incentives and the basic drivers of human action, way outside of the mainstream of debate, and just a crazy idea that was a waste of time to consider. These days many students I encounter regard the UBI as obviously desirable.
It is much easier to tolerate losing in a democratic procedure in a low-aperture world because the stakes are lower—your opponent’s laws and policies are different from yours, but not that different. In our current wide-aperture conditions, by contrast, losing feels intolerable. One poll last year found that about ¾ of both Democrats and Republicans agree with the statement, “I believe that Americans who strongly support the [opposing party] have become a clear and present danger to the American way of life.” When the other side seems so extreme, the stakes of losing power to them for a few years also feels very, very high.
Who knows what the future holds, but I think it is unlikely that the “wide-aperture” character of our politics will transform into a more narrow zone of agreement that we saw, at least narrow at the elite political level, that we saw in the 1980s-2010s period. In some ways, I interpret Joe Biden’s campaign promises to return America to normal as a wish for this kind of narrowing. Instead, I think we as a democratic society need to develop strong muscles—institutions and practices—for dealing with our wide ranges of disagreement peacefully.
GrowthPolicy: I’d like you to address the changing role of the U.S. Supreme Court. Historically, our Supreme Court has functioned as an apolitical institution, and as a bastion and protector of democracy. During the last administration, we saw the politicization of the Supreme Court. What are your concerns about the future of the Supreme Court?
Archon Fung: Many legal academics and political scientists would disagree with your premise that the Supreme Court has ever functioned as an apolitical institution. Indeed, as the important political scientist Robert Dahl pointed out in an article from 1956, that idea may not even be logically coherent. Courts do make policy in the sense that they decide controversial questions—about marriage equality, economic regulation, and reproductive choice, just to take a few. In such cases, any decision the Court makes will be controversial and favor one set of values over some other set.
What would it mean for the Court to do this apolitically? Certainly, the outcomes and consequences are political. Is the idea that the Justices are doing their level best to interpret what the Constitution and prior law requires? That exercise itself involves many choices that strike me as having an inescapably political dimension—for example, about whether the exercise is trying to figure out what James Madison thought about the issue, about what James Madison would have thought knowing what we know now, or about the implications of enduring but abstract Constitutional values like equality and liberty require in particular cases.
One main difference is that in recent years, Supreme Court justices have been confirmed by much more partisan, party-line votes and by much narrower majorities. Retiring Justice Stephen Breyer was confirmed by an overwhelming consensus vote of 87-9. Before him, we saw consensus votes of 96-3 for Justice Ginsberg, 90-9 for Justice Souter, and 97-0 for Justice Kennedy.
By contrast, every member of the current Supreme Court has been confirmed by much more partisan and much closer votes. Justice Jackson was just confirmed by a 53-47 vote and before her Justice Barrett by 52-48. In this partisan sense, then, the Court has indeed become much more “political.”
This sense of the politicization and decline in legitimacy of the Court is, I believe, in large measure a product of the polarization of American politics and society, generally, as well as our “low-deference” times. At the level of the citizen, for the Court to be legitimate to you, you have to believe that it can be right and you wrong on matters of deep belief.
A strong test of the Court’s popular legitimacy might run something like this. Enough Americans have to be able to say: “I believe that state and local governments should be able to regulate firearms strongly in America. But the Supreme Court has decided that there is a very comprehensive right to bear arms and so governments cannot make such regulation. Those nine justices are much more expert on the law, the Constitution, and rights than I am, so they must be right and I must be wrong.” You can imagine such hypotheticals that run the other direction politically.
My point is that in these wide-aperture, low-deference times, few Americans and few political leaders accord the Court this kind of legitimacy-conferring deference.
GrowthPolicy: What are your views on the U.S. electoral college, in its currently existing form? Does it need reform? If so, of what kind and towards what end?
Archon Fung: For so many reasons, I think the electoral college is in serious need of reform. First of all, it is not a politically transparent and easy-to-understand institution. Try explaining how it works to anyone who grew up outside of the United States. Second, it focuses presidential races upon a few “swing” states—that is where Presidential campaigns invest the lion’s share of their resources. Most of the rest of us live in Electoral College uncontested states, and so are largely left out of Presidential elections. The institution turns what should be a fifty-state contest into something like an eight-to-ten-state contest. Finally, especially in recent years, the Electoral College has often generated a President who wins in the Electoral College but who has lost the popular vote. Especially in these wide-aperture times, this mismatch decreases the legitimacy of Presidents and the Presidency. Six justices voted “yes” in the recent Dobbs ruling that over-turned Roe. Five of them were nominated by Presidents who lost the popular vote.
Readers who are interested in the Electoral College should read my friend Alex Keyssar’s magisterial book Why Do We Still Have the Electoral College? He has forgotten far more about this topic than I will ever know.
GrowthPolicy: I’d like you to talk about the upcoming U.S. Presidential election of 2024. As a political scientist, what do you believe the events in the aftermath of the 2020 Presidential election portend about the possibility of a failed Presidential election in 2024? What are your predictions and anxieties, if any?
Archon Fung: I have many anxieties about the 2024 election. A great deal will depend upon the shape of Congress and state legislatures after the 2022 mid-term elections. How many of those representatives will have explicitly endorsed or tacitly accepted the “big lie” that Joe Biden did not legitimately win the 2020 election?
I think the best outcome for the legitimacy of democratic institutions for 2024 would be a decisive victory—beyond the zone of plausible contestation—on one side or other. That result would give Americans and their institutions a little bit of time to breath. At least for a few years, people might focus more on fighting about their ideological, policy, and legal differences rather than about how we know who got more votes. The trouble is that because of January 6th and the tens of millions of Americans and many Republican politicians who in one way or another endorse the “big lie,” that zone of plausible contestation has grown dramatically larger than it was in, say, 2000, when the legitimacy of George W. Bush’s victory over Al Gore was also in some doubt.
One major anxiety I have operates at the level of beliefs—way too many Americans and Republican politicians profess doubting that Joe Biden won the 2020 election. In a 2021 Pew Poll, 75% of Trump voters report believing that Donald Trump definitely or probably won the 2020 election. As I said at the outset, institutions are little more than crystallized patterns of beliefs, norms, and actions. Beliefs about the integrity of our electoral institutions and their methods for determining winners and losers changed fundamentally in 2020. Changes in norms and actions may well follow.
Another major anxiety that I have concerns methods and strategies. As the January 6th hearings reveal, political operatives developed legal, political, and social movement strategies at the federal and state level for contesting election results that by all reliable accounts are valid. Those efforts failed to produce a different outcome—Donald Trump remaining in the White House—in 2020. But they provide tools in the toolbox for election subversion that politicians may improve and deploy in the future.
A third major anxiety that I have is that 2020 was the first American election in a long time, maybe ever, in which the loser of a Presidential election did not, and still has not, conceded that he lost. The peaceful transfer of power does not strictly require “loser’s consent”—we transferred power peacefully in 2021 without that consent—but it is an important condition and norm to assure the robustness of democracy.