In Part I of this series, I charted democracy’s public decline, showing how Congress’s long retreat from its constitutional role hollowed out the balance of power and accelerated America’s own unraveling. Here, in Part II, I examine what has filled that vacuum: a judiciary that has abandoned its role as a check, an executive that increasingly operates without constraint and states adopting the same habits of impunity. I argue that these institutions now enable the very abuses they were created to prevent, allowing a slow-motion dissolution of democracy in broad daylight.
The American system of democracy is not collapsing because its institutions have vanished. It is collapsing because they still operate, only now in bad faith. Congress still gavels in; agencies still write rules; courts still issue orders. The choreography is familiar, almost comforting. But the meaning has changed: procedure no longer restrains power so much as it protects it, allowing democratic forms to persist even as democratic responsibility erodes.
The Supreme Court is the clearest example of that shift. The branch designed as a brake pedal has instead become an accelerator, a dependable ally to the executive at the very moment when restraint matters most. Its preferred vehicle is the so-called “shadow docket,” once a rarely used emergency tool for last-minute matters such as death penalty appeals. Today, five justices can effectively decide major questions through expedited, unsigned orders that bypass full briefing, oral argument and public reasoning.
As the Brennan Center for Justice’s notes in its “Supreme Court Shadow Docket Tracker,” the court now turns to it “at an unprecedented rate” to fast-track the administration’s most sweeping policy actions with minimal briefing, no oral argument, opinions unsigned and often with no explanation at all.
The numbers tell their own story. In the first 20 weeks of President Donald Trump’s second term, his administration sought emergency action 19 times, the same number the Biden administration filed in four years. The Obama and George W. Bush administrations together filed just eight in their combined 16 years in office. And the court has sided with Trump in nearly every case.
The silence may be the most chilling part. In at least seven major cases, the court offered no reasoning for its decisions. Yet these rulings allowed mass firings of civil servants, the shutdown of scientific research, the summary deportation of migrants and the stripping of temporary legal protections from hundreds of thousands of people.
Lower-court judges, usually loath to criticize the institution above them, are now openly alarmed. In a New York Times survey, 47 federal judges said the Supreme Court has been mishandling its emergency docket since Trump returned to office. Judges appointed by presidents of both parties described the rulings to the Times as “mystical,” “blunt,” “demoralizing” and “a slap in the face to the district courts.”
Judge James Wynn of the Fourth Circuit said his court was “out here flailing,” trying to interpret emergency orders that left judges “in limbo.” Judge Allison Burroughs of the District of Massachusetts observed, with some understatement, that the decisions “have not been models of clarity.”
Defenders of the shadow docket, such as Supreme Court Justice Brett Kavanaugh, argue that emergency orders are only provisional and therefore do not require the same level of explanation that the court provides in full merits decisions.
That misses the point. Once people are deported, agencies gutted or grants canceled, the damage is done. Justice Elena Kagan put it bluntly: “Courts are supposed to explain things.” Without explanation, she argued, the court is enabling the executive’s unchecked ambitions. And in case after case, that is exactly what the court has permitted. It is one thing for a referee to stop calling fouls. It is altogether something else when the referee starts playing for a team.
Meanwhile, the presidency has grown into a personal empire. Drawing on the Heritage Foundation’s blueprint for consolidating executive authority, Project 2025, the administration is working to purge the career civil service and take control of agencies once insulated from political retaliation.
But consolidation of power is only half the story. Increasingly, the presidency operates as both a political instrument and a revenue stream, with public authority leveraged to secure private gain. Trump has demanded hundreds of millions of dollars from the federal government over past investigations of his own conduct — claims reviewed by a Justice Department led by attorneys who previously served as his personal legal defenders — while simultaneously expanding a global family business that profits from foreign governments with active interests before the United States. The lines between state power and family business have blurred, edging the United States toward a kleptocracy: governance redirected toward the financial interests of the leader himself.
The presidency is only one axis of decline. The erosion radiates outward, and the shift I mentioned earlier has also become discernible at the level of the states. The same habits of impunity reshaping Washington are now migrating to statehouses, where the guardrails are even weaker, and several states have become laboratories of democratic regression.
Texas, encouraged by the president, enacted a congressional map engineered to yield five additional Republican seats. Missouri passed Trump-aligned gerrymandering designed to deliver another GOP seat, prompting opponents to begin a statewide referendum to stop it. Florida eliminated a long-standing majority-Black district despite prior court rulings affirming its constitutionality.
California moved in the opposite direction: in November, in a landslide, voters approved Proposition 50, a defensive redistricting reform designed, according to its sponsors, to preserve competitive elections.
Our states are fragmenting into two incompatible visions of self-government: one narrowing democratic participation, the other scrambling to preserve it.
Taken together, these trends show a republic drifting into a kind of performative democracy: institutions that still function but are mere shells of their purpose; procedures that continue, but no longer restrain the abuses they were designed to prevent. Congress holds hearings that go nowhere; courts issue orders that say nothing; agencies enforce policies written outside their mandates. And through it all, the president fills the pockets left by decades of legislative inaction and judicial surrender.
Democracies rarely collapse in a single moment. They erode when institutions keep operating long after they have abandoned the principles they exist to protect. That is where America now finds itself, not in darkness but in daylight, under familiar rituals that no longer serve the public they were created to defend.
Opinion articles represent the views of their author(s), which are not necessarily those of The Dartmouth.
