Emory Law Journal


In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the target of such power-consolidating reforms, though they are not the only such target. Depending on their nature, such reforms are variously characterized as eroding democracy or being illiberal. But while they may be substantively undemocratic or illiberal, these reforms tend to be procedurally lawful. That is, they do not subvert the constitution outright but work within the existing constitutional framework, with reformers either formally changing the constitution or seeking new interpretations.

Why would leaders pursuing undemocratic reform follow lawful procedures? One conjecture for why power-seeking leaders choose this path is to boost support for the reforms among domestic audiences, who may care about the legal pedigree of reform. Yet there has been little or no empirical research on whether the reform method actually affects how domestic audiences respond to them.

We address this question through a survey experiment conducted on a representative sample of over 4,000 U.S. respondents in late 2020. The experiment presented subjects with questions relating to two proposals that arguably consolidate power: (i) President Donald Trump’s suggestion to stay in office for a third term and (ii) a longstanding proposal—now commonly associated with President Joe Biden—to impose term limits on the Supreme Court. In gauging support for these proposals, we randomly divided respondents into seven treatment groups, with each evaluating a different reform method on a continuum of constitutional lawfulness: ranging from constitutional amendment, to threatening judges, to simply ignoring the law.

We find that while partisan policy preferences are, unsurprisingly, the main predictor of proposal support, procedural tactics also affect support in particular cases. Perhaps surprisingly, only supporters of the leader pursuing the reform are significantly concerned with how it is implemented. For example, only Trump supporters distinguish his pursuing more lawful methods (a third term via constitutional amendment or by judicial reinterpretation) from less constitutionally lawful means; the Biden proposal for Court term limits shows similar effects. Thus, to the extent that certain procedures are followed to persuade domestic audiences, those pursuing undemocratic reform may expect to increase support somewhat among their own base but not among the opposition.