Jenny Breen (Syracuse University — College of Law) has posted Democracy Talk: The Roberts Court on Democratic Ideas and Practice, forthcoming in 78 South Carolina Law Review (Fall 2026), on SSRN. Here is the abstract:
This Article takes a novel approach to questions surrounding democracy and the Supreme Court by training its lens on the Court’s “democracy talk.” Relying on a newly constructed dataset consisting of 71 separate opinions and 134 unique uses of the word democracy across the full 20 years of the Roberts Court, this Article makes several new, empirically grounded contributions to our understanding of the role of the Supreme Court in American democracy. First, the Court consistently describes the United States as a democracy and does so in ways that reflect a proceduralist, “thin” definition of democratic governance. Second, despite the increased popular and scholarly attention to democracy in light of concerns about democratic erosion in the United States, there has been no sustained uptick in overall democracy talk over the course of the Roberts Court. On the other hand, there has been a dramatic increase in one particular type of democracy talk since 2020, namely, discussion of the Court’s own role in democracy. Finally, the Court repeatedly describes its own role as either dangerously hostile to or outside of democracy altogether. The Court has not described itself as having a specifically positive role to play in our democracy since 2014. Democracies depend on courts that will defend democracy. These findings suggest that in this moment of democratic peril the Court’s refusal to locate itself within our democratic system has the dangerous effect of unburdening it from concern with democratic norms and principles.
Recommended.