Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago, working on comparative and international law from an interdisciplinary perspective. He is the founding Faculty Director of the University of Chicago Forum on Free Inquiry and Expression.

Ginsburg is a leading voice in comparative constitutional law and one of the most influential scholars studying how courts and constitutions function in modern democracies.

In this interview with Bar & Bench's Pallavi Saluja, Ginsburg speaks about parallels and differences between the US and Indian Supreme Court, democratic backsliding, judicial independence, how law schools need to adapt to AI and more.

Edited excerpts follow.

Pallavi Saluja (PS): What institutional changes are needed for the Supreme Court of India? 

Prof Tom Ginsburg: I'll just start with one that I noticed as a scholar trying to study the Supreme Court of India. The availability of data is not very good, considering the importance of the Court in the country. That basic data problem has been filled, as you know, by non-governmental organisations, by scholars and other outsiders. That is an issue on which, if you compare - and I hate to do this - but if you compare the courts in the United States and India against, say, the courts in China, the information capacity about what's going on in the court in China is much better than either of our countries.

The issue of appointments obviously is a complicated one and there are many ways of doing it, but the mechanism whereby the Chief Justice of India comes in for such a short time means that none of them has the ability to really think about the institution as an institution. There are many things that insiders would be aware of and want to make changes to improve operations, but the fact is that no Chief Justice is ever there long enough, even if they wanted to get those changes through.

I'm not advocating for any particular other system. In other countries, you might have the opposite situation where the Chief Justice is this all-powerful person and that's no good either. At least it would be good for the SCI to pay some sustained attention to institutional reform...they could do it by having a special committee of the judges, making some recommendations and then adopting a multi-year plan for implementation that they launch with the help of the secretariat.

PS: In India, we have the Collegium system, where judges appoint judges. Would you suggest something better to safeguard judicial independence in India?

Prof Ginsburg: Judicial appointment systems are quite varied around the world and there's always this tension between independence and accountability. You could imagine a system like ours where the politicians just appoint the judges. So that leans somewhat heavily towards accountability. But on the other hand, they serve for life, so they have a lot of independence. 

One of the big trends around the world is the Judicial Appointments Commission - a mixed commission like that proposed 10 years ago in India, which is used in many countries. I found that it has been a rather unstable institution when it has been adopted. In some countries, the judges are the majority. In other countries, they're not; they have various outsiders. There's always this tinkering with the membership of those institutions. So I don't think that's a magic solution in any sense, but it certainly pushes a little more towards accountability and away from independence.

What you have to decide is, in the current circumstances, do you want to tinker with something which is maybe not working perfectly but might be better than any of the alternatives? Institutional change always has unintended consequences and it's hard to predict what the results will be. So maybe the Collegium system is the best you can do for now. It certainly does mean that there is this self-appointing quality to the judges and that can have a downside, but it also means that they can be a bit more independent of the government.

PS: There have been calls for increasing the retirement age of Indian Supreme Court and High Court judges. How do you see the pros and cons of having Supreme Court judges serve for life?

Prof Ginsburg: There are many countries in which the Constitution says that judges will serve for life, but in all of those countries, except the United States, what they mean is life until the mandatory retirement age. I think our system is very bad, actually. Many of us have been calling for term limits for the Supreme Court justices. In fact, President Joe Biden created a commission to study the Supreme Court, and I testified before it. There was a lot of disagreement, but one of the things that almost everyone agreed on was that there should be a term limit of some kind for our justices. Maybe 18 years...then each president could have the possibility of appointing a judge or two judges. That would provide more rotation, and a little more vitality to the institution. So the flaw in our system is that every president is incentivised to find the youngest person on their team they can appoint so they will serve for life. The problem with that is the younger someone is, the less we really know about them and the less experience they have.

If you do have an age limit, as India does, the problem is that the age limits were drafted at a time when life expectancy was much lower...In my country, the judges are of the social class where, in terms of income and education level, they can expect to live into their 90s...So that means they're sitting for too long. But 65 means they're retiring too young, in my view. In general, I would be in favour of raising the retirement age to 70. That would allow a longer term if you kept the current system of the Chief Justice. In any case, the big point is that at 65 nowadays, you're at the peak of your powers. You're not at the end of your powers. So I think it should probably be raised in a way that accounts for all the possible institutional transitions that need to happen to make that work.

PS: As a professor of comparative international law with a focus on democracies, what recent trends have you observed with respect to India's journey as a democracy, and what parallels would you draw with the US or other democracies?

Prof Ginsburg: I'm not a scholar of India, but I think both the United States and India are witnessing major changes to their democracies. Both are governed by what we call a charismatic populist leader - an individual with such charisma that they can make significant changes in their countries' politics. I think politics in either country won't go back to the way they were before Modi and Trump. That's something that the two have in common. In the United States, we have basically a minoritarian system of democratic governance. That is, by virtue of the way the Senate is created and by virtue of the fact that we allow the politicians to draw their own maps for districts, we have a very, very skewed parliamentary congressional makeup. We really have one party dominance right now...In India, of course, the BJP has commanded significant majorities and lots of public support. So I think ours has more malapportionment...

...Of course, in both countries, the role of the courts is subject to public debate because they sometimes push back. I think, to some degree, both Supreme Courts are subject to the same criticism: they're not pushing back enough. Of course, I can't comment on the situation in India, but I think that's definitely true in the United States. The US Supreme Court has, in some respects, given a blank cheque to executive power beyond what the framers of the Constitution would have wanted. I think that's quite problematic. 

PS: You argue that democracies rarely collapse through coups anymore and that they erode from within. Can you elaborate a bit on that? 

Prof Ginsburg: I came of age at the end of the Cold War. When we thought about democracy and its end, we tended to imagine two kinds of channels. One would be a military coup - something that happens every week in Pakistan, for example. The other would be a communist revolution of some kind. There aren't many revolutions. The last one really was 1979 in Iran. The military coup has gone out of fashion, at least in the developed world. Now there have been a number in Africa, but for the most part, it's not really a threat to countries that have reached a certain level of development. 

Instead, what we see is that democracy dies slowly through a series of slow cuts and changes and incremental moves, such that it's hard to know at what point the democracy is lost when it's no longer possible to have rotation in power. If you think about some countries that were democracies and are no longer - such as Turkey and Venezuela - you see the pattern: leaders were taking more and more power and at some point, it became impossible to reverse. Turkey is perhaps the most dramatic example people are talking about. It was a Muslim democracy a couple of decades ago. Now the most prominent opponent of Erdogan is in jail and they're trying to sentence him to decades in prison. So they've lost any image of being a real democracy. But it happened initially through many incremental steps and that's what we have to watch out for. 

I presented my book with Professor Aziz Z Huq in Delhi seven years ago; we're now doing a second edition. As I re-read it, I find that many of the things we pointed out as potential risks for the United States have happened. We identified channels through which democracy erodes and techniques used by anti-democrats. Just for example - eroding the public sphere, interfering with the press, intimidating academia, trying to use libel suits to silence opponents, civil society monitoring and such. That we've seen in many countries. We also see, of course, attacks on the courts. 

Interestingly, not attacks on the legislature, but rather bypassing it through the concentration of executive power. It's a very severe problem in the United States right now. In some countries, a constitutional amendment is used. So any one of these channels can be used, and you add them up. And what we find is when autocrats try something and it doesn't work, they try something else and it does work. So they're very, very clever; very institutionally inventive to try to find new ways to accumulate power. The big point is that one day, you could wake up and there will be no way to get rid of them. 

PS: If you think democratic backsliding is usually gradual, why are people not able to see it and stem it there and then?

Prof Ginsburg: Well, that's precisely it. Each individual step looks very minor. In order to protect democracy, what you really need at the end of the day is for the majority of the people to realise that their democracy is under threat. Not just to understand that, but to agree on which point is the critical one when they all ultimately show up in the streets to make their feelings known. The problem is that people don't necessarily know what others are thinking. There are too many of them to coordinate. So sometimes, what we see is that breaking a particularly clear norm will lead to people sort of waking up and saying, “No, no, that's enough”.

That's where term limits come in in presidential systems. A term limit is a very clear norm. If President Trump was to say, “I'm going to run for a third term”, I don't think it would work. He's going to talk about that, I promise you, but he's not really going to run for a third term because if he did, half of America would come out because it's such a clear violation of the Constitution.

Some of these other things, including overturning the case of Humphrey's Executor (which had provided that the President could not fire members of independent regulatory agencies), are very important decisions. But the average member of the public has no idea what that case is about and will not act in response. So it's the clarity of the violation that allows us to defend democracy and precisely because democratic backsliding proceeds one step at a time through very subtle changes, it is very hard to fight against.

PS: You also said that institutions alone cannot save democracy. So what can actually save it?

Prof Ginsburg: Institutions, we say, are speed bumps. They can block and slow down erosion, but they can't, on their own, end it. With enough time, any autocrat can take over institutions. Right now, in the United States, the Supreme Court is clearly aligned with the president's party, while the lower courts are quite divided. He's losing many cases and that's working. So it's showing that institutions are still effective. But if you give him four or eight more years of appointing lower court judges, then those lower courts won't be such good institutions.

One thing I've heard from my colleagues at the Bar is that the quality of the people being appointed to the Bench is declining because they're looking for loyalists...They want a very loyal sort of MAGA-type judge...the more that goes on, the more the courts will be degraded and that could ultimately erode the institution...Institutions are themselves capable of being undermined from within, hollowed out.

At the end of the day, what saves democracy usually is not any single magic institution but a network of them where you have the electoral institutions, the courts, sometimes ombudsmen, that all work together and push back against an autocratic move. And we've seen that in many countries. South Africa is a good example. So is Poland. Perhaps, the key thing is to keep as many institutions with integrity as you can.

PS: Do you think judicial independence, freedom of speech and free elections currently are vulnerable in the United States? 

Prof Ginsburg: I'll start in the reverse order. Free elections– like India, there's no chance that we would not have an election. Sometimes I hear people say, “Oh, Trump's going to cancel the election.” No. That would never happen, just as in India. 

The Indian election is, of course, some describe it as one of the greatest wonders in the world because it's such an amazing scale. There's no way Indians would tolerate not having an election. So then the question is the quality of the elections....We have a major statute called the Voting Rights Act that they have chipped away at. That's been pretty damaging. What it has done is it's encouraged some states to have more restrictive voting rules and to redraw electoral maps for partisan advantage. Our election quality is being reduced...But still, there's no question we're going to have elections. There's going to be a high turnout and those elections will be counted in a free and fair way, I believe. 

Now, freedom of speech has come under grave attack, and it's very interesting that the Trump administration came in and, in one of its first executive orders, restored freedom of speech. But then you see that they've demanded that comedians be fired. They've sued the press. They've attacked universities and told universities they can't teach certain things. They've demanded that people be fired if they weren't sufficiently reverential towards the murdered Republican activist Charlie Kirk. Their remedy for left-wing cancel culture is worse than the disease. So I find that freedom of speech is under attack, no question...

...Judicial independence is pretty strong in the United States, but I think the quality of the judiciary is being significantly eroded...I hear from lawyers, “Boy, these judges just aren't as good as they used to be.” Sometimes even the best argument doesn't win. We've seen some very partisan federal judges. Also, even at the lower level in immigration court...they are undermining the integrity of the judicial system… I sometimes say when I'm joking - we have the best judges that money can buy.... All that said, the judges remain more popular than other branches. There's more support for the judges, more trust in the judges than there are in the other branches of government. Congress is always terribly low.

PS: Coming to the administration's pressure on universities and law firms - some have given in while others have stood their ground. How important is it for the legal fraternity in the US to come together to face such a challenge? 

Prof Ginsburg: The Trump administration has come after many aspects of civil society. The universities were doing their best and some of them surrendered too much academic freedom. The law firms were especially shameful because they didn't really even put up a fight...The firms that just gave in to the administration have provoked a lot of backlash by other members of the legal fraternity because they were seen as selling out to protect themselves. We understand why they did that. The Trump administration issued an illegal order that said they couldn't proceed before any federal agency the next morning. No doubt that law firm was thinking, “Yes, we'll win in court, but we're going to lose these clients tomorrow.” So they were forced by this bullying tactic to do what they did, but still they suffered. I saw many of my students who were planning to go work for those firms say, “God, I don't want to go work for these people because they just gave in to Trump so easily.” I do understand why each actor did what they had to do or what they thought they had to do. It shows you the cleverness of the administration in driving a hole through that collective action, dividing people.

PS: How has the teaching of law changed, especially with recent technological advancements? 

Prof Ginsburg: This term I made the mistake of having a take-home exam for my students. I always do that, but the deputy dean came to me and said, “You really can't do that anymore because they're just going to use the AI.” So then what I had to do, I didn't want to change the announced exam. So I told them, “Okay, you can do whatever you want, but you have to tell me how you use the AI if you do.” I'm going to find out when I grade these exams what they do. My sense is that when they use AI, it will probably compress the quality of the exams. They'll be more similar to each other and that ultimately hurts them all. At the same time, I think we as law professors have a duty to teach our students how to use AI in the best way. AI is going to eliminate many legal jobs, but I think it's going to create more. It's going to create more opportunities for certain very high-end lawyers who can know how to use the AI the best. I think it's a grave disaster for lawyers who are doing routine contracts or routine wills that can be done by a machine. Maybe it will be more efficient if the legal profession doesn't rely on monopolistic barriers that force people to come to us. We have to figure out how to teach it, and I think we have to maybe require first-year courses in how to use AI for research in an acceptable way.