July 31, 2023

New Challenges Threaten U.S. Rule of Law Recovery

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This piece was originally published by the World Justice Project

Starting six years ago, a global rule of law recession has rippled and raged through communities around the world. Authoritarian trends compounded by the Covid-19 pandemic have eroded government accountability, rolled back human rights, and delayed justice in dozens of countries.

By 2021, the United States was among the countries with the sharpest deterioration in the rule of law. Declines in U.S. rule of law performance were roughly on par with those in Myanmar, Nicaragua, and the Philippines.

Then last fall, the U.S. score on the annual World Justice Project (WJP) Rule of Law Index rose for the first time since 2016. The country’s gains across all eight factors that the Index measures made it one of the world’s biggest rule of law improvers in 2022. Suddenly, it seemed imaginable that the United States could bounce back, although there was still a hill to climb.

But months later, an onslaught of escalating headlines suggest that U.S. rule of law not only remains at risk, but that it could unravel in new directions.

The former U.S. president appears to be facing criminal indictment for alleged schemes to undercut elections, an essential cornerstone of U.S. democracy and rule of law. Campaign speeches and a recent New York Times article suggest that if reelected, Donald Trump would work to dramatically consolidate presidential power and eviscerate congressional oversight of executive branch agencies. And the crown jewel of the government’s third branch, the judiciary’s Supreme Court, is embroiled in ethical controversy.

Some of these currents evoke the U.S. rule of law indicators that have fallen most sharply in recent years, notably those related to weakened checks and balances. Even with some recovery last year, the WJP Rule of Law Index measure for “Constraints on Government Powers” in the United States has fallen 15% since 2016. The capacities of the legislature, the media, and the judiciary to rein in executive power have all fallen significantly, as has confidence in election processes.

To create the Index, WJP draws on in-depth surveys of legal practitioners and subject-matter experts, as well as nationally representative polls. Those household polls show a stunning decline in people’s belief that Americans can vote freely without feeling harassed or pressured. In 2016, 91% of people surveyed believed this to be true. By 2021, only 58% still agreed.

Belief in government accountability has also taken a huge hit. In 2016, more than half of Americans (56%) believed that high-ranking officials would be held accountable for breaking the law.  Five years later, less than a quarter of Americans (24%) agreed.

However, one area of public and expert confidence that has remained strong over the years relates to judicial integrity. The proportion of Americans who say all or most members of the U.S. Congress are corrupt has steadily climbed in recent years, with more than half (54%) holding this belief in 2021. In contrast, less than a fifth of Americans (19%) believed judges to be corrupt, the same as a decade ago.

For years, the United States has scored highly on the judicial integrity indicator in the WJP Rule of Law Index. In 2022 it scored 0.91 out of 1, making it the country’s second-highest strongest rule of law indicator among 44 Index sub-factors. Only the U.S. score for lack of civil conflict (1.0) was higher.

In October, the 2023 WJP Rule of Law Index will show whether this previously solid U.S. strength may start to weaken. It’s a significant trend to watch because confidence in the judiciary is a bedrock of healthy rule of law.

The latest polling suggests that public confidence in the Supreme Court has taken a hit in the wake of recent controversies, including revelations of justices accepting lavish gifts from billionaires with business before the Court. Whether falling trust will persist and filter down to engulf the wider judiciary remains to be seen. But these new vulnerabilities couldn’t come at a more critical time.

After all, the courts will decide the fate of the former president as he faces criminal charges, including those already filed for financial malfeasance and the mishandling of classified documents. And the future course of U.S. rule of law could rely on wide respect and acceptance of court decisions, including, and perhaps particularly, in any election-related disputes.

Just last week, the former president and current presidential candidate said that it would be “very dangerous” for a special prosecutor to even talk about sending him to jail. That’s because, Trump explained, “we do have a tremendously passionate group of voters.”

Voters’ ultimate response to former President Trump’s legal troubles is an open question. WJP data suggests the nation is not divided when it comes to the principle that no one is above the law.  For example, an overwhelming number of Democrats and Republicans believe it is important to obey the laws of the government, no matter who you voted for (Democrats 78%, Republicans 79%) and that the president must always obey the law and courts (Democrats 87%, Republicans 86%).

Keeping a focus on these core values can hopefully contribute to continued recovery from the backsliding the United States experienced between 2016 and 2021 and help the country maintain its historically strong rule of law.

Democracy and Elections, Democracy and Voting, Rule of Law