Plenary 6: Restoring Public Confidence in the Courts in a Highly Politicized Environment

Restoring Public Confidence in the Courts in a Highly-Politicized Environment

This program will discuss how the events of the past several months in the United States compare to historical events in other countries that have regressed into “backsliding democracies” or authoritarian regimes, e.g., Hungary, Turkey, Poland, Venezuela, or successfully avoided a full regression. In particular, this program will examine how court systems have been marginalized or manipulated in those countries to hasten that regression. Professor Susan Stokes will provide a historical and comparative analysis from a political science perspective. Professor Stephen Vladeck will analyze significant rulings by the United States Supreme Court in litigation challenging actions taken by the executive branch, including the prolific use of executive orders to create and enforce new laws. The discussion, moderated by Judge Jeremy Fogel (Ret.) of the Berkeley Judicial Institute, will culminate in lessons that can be applied to the current situation in the United States to protect the independence of the courts and restore the rule of law in this highly-politicized environment.

Learning Objectives:

1. Discuss the historical context surrounding the process by which other countries have regressed from constitutional democratic rule to illiberal democracies or authoritarian rule.

2. Examine the rulings of the United States Supreme Court in litigation challenging actions taken by the executive branch, including the prolific use of executive orders to create and enforce new laws.

3. Discuss the lessons learned from other countries to ensure that the courts remain independent and retain the public’s trust and confidence.

Hon. Jeremy Fogel (Ret.), Executive Director, Berkeley Judicial Institute

Judge Jeremy Fogel is the Executive Director of the Berkeley Judicial Institute and a Professor at UC Berkeley Law School. The mission of the Berkeley Judicial Institute is to build bridges between judges and academics and to promote an ethical, resilient, and independent judiciary. Prior to his appointment at Berkeley, he served as Director of the Federal Judicial Center in Washington, DC (2011-2018), as a United States District Judge for the Northern District of California (1998-2011), and as a judge of the Santa Clara County Superior (1986-1998) and Municipal (1981-1986) Courts. He was the founding Directing Attorney of the Mental Health Advocacy Project from 1978 to 1981.

Judge Fogel has served as a faculty member for the Federal Judicial Center since 2002 and was a lecturer at Stanford Law School from 2003 until his relocation to Washington. He taught for the California Continuing Judicial Studies Program and California Judicial College from 1987 to 2010 and has served as a faculty member for legal exchanges in approximately twenty foreign countries. He received his B.A. from Stanford University in 1971 and his J.D. from Harvard Law School in 1974.

Judge Fogel has received numerous accolades, including the President’s Award for Outstanding Service to the California Judiciary from the California Judges Association, the Vanguard Award for notable contributions to intellectual property law from the State Bar of California, and, most recently, the Samuel E. Gates Litigation Award from the American College of Trial Lawyers, which is given from time to time to recognize “a lawyer who epitomizes ethical conduct, integrity, collegiality, and professionalism.”

Prof. Susan Stokes, Tiffany and Margaret Blake Distinguished Service Professor of

Professor Stokes is the Tiffany and Margaret Blake Distinguished Service Professor of Political Science at the University of Chicago and Director of the Chicago Center on Democracy. She has written or co-authored six books on topics including democratic theory, distributive politics and clientelism, political behavior and participation, democratic erosion, and Latin American politics. She is President-elect of the American Political Science Association. She is past chair of APSA’s Comparative Politics and Democracy and Autocracy Sections, past chair of the Yale Political Science Department, and a founding member of Bright Line Watch. She is also an elected member of the National Academy of Sciences and the American Academy of Arts Sciences.

Professor Stokes’ forthcoming book, The Backsliders: Why Leaders Undermine Their Own Democracies (expected in 2025), offers an explanation for the wave of democratic erosion or backsliding that has affected many countries in the early 21st century, including the United States, several European countries, and others in the Global South. The Backsliders uses state-of-the-art social science techniques and data to identify factors that put democracies at risk. The book also suggests strategies for resisting erosion and for repairing democratic institutions after backsliding leaders are no longer in power.

Prof. Steve Vladeck, Professor of Law, Georgetown University Law Center

Stephen I. Vladeck is a professor of law at the Georgetown University Law Center, and is a nationally recognized expert on the federal courts; the Supreme Court; national security law; and military justice.

Vladeck is author of the New York Times-bestselling book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” which has won numerous awards, including the 2024 Order of the Coif Book Award. Vladeck is also a highly regarded appellate advocate, having argued before the U.S. Supreme Court and numerous lower federal civilian and military courts. He has received numerous awards for his influential and widely cited legal scholarship, his prolific popular writing, his teaching, and his service to the legal profession—including the 2024 University of Texas President’s Research Impact Award and his selection by the Order of the Coif to serve as its Distinguished Visiting Professor for 2025.

Vladeck is CNN’s Supreme Court analyst and editor and author of “One First,” a popular weekly newsletter about the Supreme Court. He is also a co-author of Aspen Publishers’ leading national security law and counterterrorism law casebooks. And he is a member of the Board of Trustees of Amherst College (from which he received his B.A. summa cum laude with Highest Distinction in History and Mathematics in 2001) and EarthJustice—the nation’s premier nonprofit public interest environmental law organization.

Vladeck graduated from Yale Law School in 2004—where he was executive editor of the Yale Law Journal and won the Harlan Fiske Stone Prize for outstanding moot court oralist and shared the Potter Stewart Prize for best moot court team performance. After law school, he clerked for the Honorable Marsha S. Berzon on the U.S. Court of Appeals for the Ninth Circuit and the Honorable Rosemary Barkett on the U.S. Court of Appeals for the Eleventh Circuit.