Attendees of this year’s Constitution Day lecture received both a history lesson and a prescription for present concerns about American democracy. Speaker Kim Lane Scheppele, the Laurance S. Rockefeller professor of sociology and international affairs at Princeton University, presented “The Rule of Law in America: Executive Power from Robert Jackson to Donald Trump,” discussing the development of presidential authority since the mid-twentieth century.
The first part of the lecture covered U.S. Supreme Court Justice Robert Jackson’s historical rise through the judiciary, including his landmark concurrence in the 1952 case Youngstown Sheet & Tube v. Sawyer. Jackson began as a small-town lawyer in Jamestown, NY, in the early twentieth century, but quickly became involved in state politics, where he met then-New York State Senator Franklin D. Roosevelt. The relationship resulted in many mutually beneficial political arrangements, such as Jackson’s eventual appointment to the Court. Prior to the highest bench, he served a series of federal judicial appointments and was appointed solicitor general in 1938 during Roosevelt’s second term.
Scheppele highlighted Jackson’s role as solicitor general, where he pursued a legal defense for Roosevelt’s “radical new vision of government called the New Deal,” which reimagined the boundaries of executive power. He also advanced Roosevelt’s controversial court-packing plan to add up to six additional justices by arguing in numerous speeches that the current makeup of the Court did not reflect the electorate’s will. According to Scheppele’s interpretation of Jackson’s pro-Roosevelt stance, “The Court overreached, the Court was doing all these crazy things, and what [the administration] needed was a different vision for the Supreme Court.” Jackson published a book during this time called “The Struggle for Judicial Supremacy,” where he further articulated his belief that the Court was “evading the basic inconsistency between popular government and judicial supremacy” and engaging in “an abuse of power.”
When World War II broke out in Europe, Jackson encountered another obstacle to Roosevelt’s energetic, ambitious presidency: Congress. Although Roosevelt wanted to prepare the country for potential involvement in the war, the legislature continued to pass Neutrality Acts in 1935, 1936, and 1937, which prevented the president from taking preparatory measures. In response, Jackson, then the attorney general, formulated dozens of ways for the president to use emergency powers and evade the limitations imposed by Congress.
Scheppele took Jackson’s dismissal of the other two branches’ power as proof of his unwavering fidelity to Roosevelt’s vision, but also as the theoretical basis for his conception of presidential power. She summarized Jackson’s position: “The President should be able to govern alone, if necessary, sweeping away checks and balances when you have this kind of emergency” to better respond to popular elections.
After the war ended, President Harry Truman directed Jackson to be the lead prosecutor in the Nuremberg Trials against Nazi war criminals due to his incredibly persuasive oratory style. Despite the difficulty of being in an unfamiliar country with a foreign language, Jackson immersed himself in the case. He pursued the charge of conspiracy, a charge that did not exist in the other Allied countries, and investigated how a robust democracy in Germany “had fallen so far, so fast.”
The primary issue the prosecution faced was that many on trial “had not committed murder with their own hands” but were clearly the force behind such grave crimes; thus, the prosecution had to invent new ways for the law to “reach men who possess themselves of great power.”
Additionally, Jackson described how, because the formal government had at first operated as a front for the Nazi party’s invisible leadership, its eventual collapse resulted in “automatic and mass dictatorship.” A crucial takeaway of his time at Nuremberg was that “Americans ought to be taught to recognize the early symptoms of such trends,” reflecting his concerns that authoritarianism could arise in all cases of democracy, including in the U.S.
Less than a decade later, Jackson’s revised perspective on the boundaries of executive authority made its formal debut in his concurrence in Youngstown. The case discussed whether the president, Truman at this point, has the authority to seize and operate the nation’s steel mills if steelworkers went on strike during wartime. The executive order at the center of the case was, in fact, modeled after one that Jackson had written for Roosevelt during WWII; yet, the justice voted with the majority to declare this order unconstitutional.
“The reason for telling you this whole story is that Jackson changes his mind,” Scheppele said. Despite being a prominent advocate of expanded presidential powers under Roosevelt, Jackson now took on a more cautionary tone in his concurrence: “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Scheppele emphasized how this evolution was a direct reaction to what Jackson studied at Nuremberg and his discovery that “it was the collapse of checks and balances that led to what we saw” in Nazi Germany. According to Scheppele, “He realizes that he really misunderstood the dangers of executive power, so he comes back and becomes the leading advocate of the constrained presidency.”
Scheppele then moved on to talk about the present. First, she offered an alternative axis for measuring political ideology as a range of democracy to autocracy, rather than the traditional liberal-conservative spectrum. Scheppele displayed a graphic from an international survey of “so-called high-income countries which are democracies,” in which respondents were asked if they believed a strong leader or a military was a preferable style of governing. Specifically regarding findings in the U.S., Scheppele interpreted the two-thirds of Americans who oppose the powerful executive as being in “a lot more agreement on whether democracy is worth it” than if they were to seek common ground in their traditional partisan identities.
She added that “the real question about democracy is whether you can get to the next election and have it be free and fair.” Additionally, determining if a government is slipping into autocracy requires asking “whether the executive has the power to override anyone who tells him no.” This is the throughline between Youngstown and Trump v. U.S. (2024), the second case of interest in the lecture.
In Trump, the plaintiff argued that official presidential acts are immune from prosecution unless he is impeached by Congress first. The Court ruled 6-3 in favor of Trump and, by extension, the office of the presidency, granting him “sweeping immunity for everything that was an official act,” as well as presumptive immunity for official acts done outside of the president’s enumerated powers. Scheppele drew attention to Chief Justice John Roberts’s majority opinion, which used Jackson’s Youngstown concurrence but cited it out of context to make it appear as though Jackson was in favor of a strong executive. The expansion of presidential immunity “has turned Jackson on his head,” Scheppele said.
Some have decided to give the president a legal green light to override federal statutes via executive orders. Since taking office, 404 lawsuits have been brought against the administration with claims that executive actions violate existing legislative protections in several areas of the law. The future of those cases is unclear as lower court judges, the Supreme Court, and the administration engage in a power struggle for the final word.
Scheppele offered a sobering conclusion and reflected on the applications of Jackson’s political trajectory. “The U.S. is really going through a period of rapid autocratic consolidation,” she said. She reviewed various actions from Trump’s second term that fit into an “autocratic playbook,” and warned that “even if you like dictators when they first come to power, you will eventually not like them because…there’s nothing that stops them from coming after you.”
To mount a defense, Scheppele outlined several steps, including building alliances with similarly concerned people, leveraging federalism by relying on state power in Democratic states, urging the creation of a non-autocratic alternative to the current Republican Party, and planning for the future in a post-Trump world. Although Scheppele raised many concerns about the rise of autocracy in the U.S., she emphasized, “People still remember when it was a democracy, and we all need to act like it. It’s not the end.”
