KATIE BARKER—How does a democracy slip into an autocracy—and is the United States currently undergoing such a transformation? Professor Kim Lane Scheppele answered these critical questions in her guest lecture for the Constitutional Crisis Seminar, hosted by Professor A. Michael Froomkin, at the University of Miami School of Law. Professor Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs and the Director of the Program in Law and Normative Thinking at the University Center for Human Values at Princeton University. She is a trailblazing scholar in the study of constitutional systems under distress, with influential work that has earned wide recognition and numerous awards. What follows is a summary of her lecture titled “How to Lose a Democracy (Autocratic Legalism Edition),” where she examines the death of democracy and how this is playing out in the U.S. today.
The 20th century witnessed an expansion of democracy worldwide, with a surge following the Cold War. Today, however, that trend has reversed. New governments coming to power are undermining democracy through strategic legal methods that create the illusion of compliance with democratic norms. While coups have become relatively rare, democracy is now dying by law. Specifically, democracies collapse when the executive gains more power by law and faces fewer checks on its authority.
The decline of democracy is exacerbated by the spread of autocratic tactics. For example, autocrats have learned that capturing the courts is a way to avoid accusations of unconstitutionality. In 2010, Turkey changed its laws to increase the number of cases in the Constitutional Court, allowing for the appointment of new judges who consistently ruled in favor of autocratic consolidation of power. Hungary then copied this move a year later. Additional autocratic ideas that have spread include restricting non-governmental organizations with foreign funding and manipulating elections through gerrymandering. So, legalistic autocrats are creating a toolkit of harmful practices—but often by adopting tactics from seemingly “good” democracies to maintain legitimacy.
The path to autocracy can be broken down into ten steps. Step one is to win elections that are “free and fair.” Many autocrats first came to power through elections that were certified as free and fair. But, aspirational autocrats frequently give warning signs. For example, both Chávez in Venezuela and Bolsonaro in Brazil demonstrated a willingness to use violence to achieve political ends before being elected president.
The next few steps involve capture tactics because autocrats want to govern by themselves. Step two is to capture the parliament. The parliament may pass enabling acts or delegate emergency powers that grant the autocrat more power. Or, parliaments will often merely acquiesce in the face of strong executive power, even when that power is asserted rather than granted.
Step three involves capturing the judiciary. This can be accomplished by packing the high court with an autocrat-friendly majority, either by expanding the bench or amending the judicial appointment system. Autocrats may also manipulate the judiciary by altering the system of judicial rewards and punishments, creating new qualifications, or effecting a reorganization to secure judges favorable to autocratic ideals.
Step four is to capture the bureaucracy. Autocrats may do so by suspending civil service protection under a pretext, placing political appointees into all crucial positions, or transforming an expertise-driven professional bureaucracy into a loyalty-driven partisan bureaucracy.
Step five involves systematically dismantling checks on executive power. Such tactics may include governing by decree instead of legislation, undermining oversight mechanisms, such as transparency requirements, or failing to abide by government rules that are not laws, such as ethics rules. Additionally, autocrats may use temporary appointments and legislative bypasses. And, they might refuse to recognize court decisions and legislative powers.
At step six, autocrats will place loyalists in key “independent” positions in enforcement agencies, as they do not want key roles filled with anyone who might oppose them. They do so especially in the “repressive” offices that have the power to harass or imprison the leader’s opponents. Ultimately, autocrats seek to create a climate of fear where no one will attempt to challenge them.
Step seven is to create a media echo chamber. Autocrats will ensure that the public consistently hears pro-government information. Furthermore, autocrats will regulate the media so they are portrayed in a favorable way. Specifically, they might threaten the business interests of media leaders or make libel threats in an attempt to make the media more cautious of how they portray the government.
Step eight involves threatening civil society and the political opposition. Autocrats target the civil sector by cutting funding, criminalizing its activities, and subjecting its groups to regulatory harassment. Similarly, they attack political rivals by depriving them of income and publicity, spreading false information, and investigating or imprisoning them.
At step nine, autocrats encourage private violence. They want to be perceived as a democracy, so they refrain from putting the police out and allow private violence to do the work instead. In particular, autocrats will place targets on those who criticize the government and make it clear that the state will offer them no protection.
Lastly, step ten involves rewriting election laws so that the autocrat never leaves office. Autocrats manipulate elections through tactics such as gerrymandering, voter suppression by law, and last-minute rule changes designed to create chaos. They also employ coercive measures, such as threatening the denial of government benefits to the “wrong” vote.
So, in the framework of autocratic governance, where is the U.S. situated? Professor Scheppele examined the U.S. through the lens of the ten-step framework. At step one—winning a free and fair election, with warning signs—Trump had demonstrated several warning signs prior to the 2024 presidential election. After Trump’s defeat in 2020, his supporters violently attacked the Capitol, and extensive public evidence revealed his plan to seize power illegally. He later stated that he would be a dictator only on “day one” if re-elected.
Step two—capturing the parliament—is also evident in the U.S. For example, Trump sought to bypass Senate confirmation of his cabinet by urging a recess. He has also been dismantling executive agencies established by Congress and has refused to spend funds allocated by Congress.
Step three—capturing the judiciary—is demonstrated. During Trump’s first term, he appointed three Supreme Court justices—an unusually high number for a one-term president. Furthermore, in 2024, Trump received a sweeping Supreme Court ruling expanding presidential immunity despite the lack of precedent. Trump has also issued hundreds of executive orders, with lower courts attempting to block them. However, in the executive order challenges that have reached the Supreme Court, the rulings have been in Trump’s favor, signaling that the Supreme Court is on board with the expansion of executive power, even when the executive orders violate acts of Congress.
Step four—capturing the bureaucracy—is evident from the politicization of the civil service. Since the current administration has taken office, approximately 125,000 federal workers have quit or been fired as of early April 2025. Entire agencies or parts of them have been dismantled, with the Supreme Court upholding these mass firings.
Step five—dismantling checks on executive power—is clear from Trump’s use of executive orders to bypass the legislature.
Regarding step six—the placing of loyalists in key “independent” positions in enforcement agencies—a central aspect has been the significant changes within the Department of Justice, including the dismissal of career lawyers and the elimination of units that might go after individuals aligned with Trump.
Step seven—turning the media into an echo chamber—is also demonstrated as Trump has a long history of suing media outlets for libel. Many media outlets have caved into these threats, opting to pay Trump in order to make the lawsuits disappear—even when they are frivolous.
At step eight—attacking civil society and opposition parties—Trump has gone after unions, universities, non-governmental organizations, law firms, and political rivals. Additionally, he has threatened law firms with loss of access to public buildings, including courthouses.
Step nine—private violence—is evident as there has been a large increase in threats from private actors against those who might oppose Trump. In particular, judges who have ruled against Trump are facing serious threats. Moreover, there are reportedly threats against Republicans in Congress to ensure they vote for Trump’s initiatives.
Lastly, step ten—rewriting election laws—has been shown through Trump’s signing of an executive order aimed at reshaping how elections are run. Trump has also declared his intent to start a movement abolishing mail-in ballots. And, Trump has already distributed “Trump 2028” hats, with some of his supporters interpreting the 22nd Amendment as limiting presidents only to two consecutive terms.
So, what is to be done to restore democracy? Professor Scheppele suggests relying on federalism: State and local law can be used to combat what is happening at the national level. In particular, state attorneys general can turn to state constitutional law, which often offers more robust protections than those afforded at the national level. For example, state constitutional law frequently has stronger constitutional protections of voting rights than the national government does. Thus, democracy can be rebuilt from the ground up through state and local action—but timely action is needed before the U.S. slips too far into autocracy.
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