How Democracies Die

by Steven Levitsky

President Harry Truman complied with the Supreme Court’s blocking of his 1952 executive order to nationalize the steel industry in the face of a strike that he viewed as a national emergency. Eisenhower enforced the Supreme Court’s Brown v. Board of Education decision despite his own displeasure with it. Even Nixon acceded to congressional demands that he turn over his secret tapes after the Supreme Court ruled in Congress’s favor. So although the office of the American presidency strengthened during the twentieth century, American presidents demonstrated considerable restraint in their exercise of that power. Even in the absence of constitutional barriers, unilateral executive action remained largely a wartime exception, rather than the rule. A similar story can be told about presidential court packing. Court packing may take one of two forms: impeaching unfriendly Supreme Court justices and replacing them with partisan allies, or altering the size of the Court and filling the new seats with loyalists. Both of these maneuvers are, strictly speaking, legal; the Constitution permits impeachment and does not specify the size of the Supreme Court. Presidents may purge and pack the Court without violating the letter of the law. They have not done so, however, for well over a century.