The Challenge Facing the Legal Commentariat at the Present Time
Legal experts play a leadership role in the democracy debate but always do best when resisting the powerful pressures of polarization and ideology.
Editor’s note: This piece is cross-posted at the NYU Law Democracy Project.
In the 2024 presidential election campaign, Democrats argued that “democracy was on the ballot.” Congresswoman Liz Cheney, the Republican co-chair of the House’s “January 6” Committee, endorsed Harris because “Our republic faces a threat unlike any we have faced before: A former president who attempted to stay in power by unraveling the foundations of our Republic.”
Yet it turned out that while many voters might agree that the choice facing voters was a choice to defend democracy, they did not agree on the right choice for that purpose. Those opposing Trump pointed to his refusal to accept the outcome of the 2020 election and his role in the attack on the Capitol; to his sweeping assertions of presidential power; and to the multiple prosecutions and legal actions involving both his private and his official misconduct. Trump supporters saw in the opposition to Trump a different transgression against democratic values: attempts to scuttle his first term with investigations and impeachments, vendettas pursued against him in contrived criminal federal and state prosecutions, and a movement to keep him off the 2024 ballot. One side has been alarmed by rising authoritarianism, the other by implacable opposition to Trump’s populist electoral majority.
This experience points toward a major problem in the debate over the state of democracy in the United States: Deep disagreement over where the dangers reside. The reasons for this aspect of our current difficulties are complex, but it is fair to consider the role of legal experts and commentators who are afforded platforms for expressing learned, influential judgments on the existence or nature of threats to American democracy. Any definitive assessment is not at this stage possible, but any provisional evaluation of expert performance has to be mixed.
Certainly, the timeliness and richness of much of the commentary, in a range of formats, has been unparalleled and indispensable. At the same time, there is a notable incidence of influential conservative and progressive opinion on hard legal issues that somehow maps too neatly on the authors’ political preferences. This is by no means always the case. Conservatives developed the theory for barring Trump as an insurrectionist from the 2024 ballot; progressives disputed its merits and argued for courts to reject it. Conservative scholars came to the defense of Justice Amy Coney Barrett when she came under attack from the right for failure to side reliably with the Trump Administration.
But often enough experts’ legal and political/ideological views seem to comfortably align, with the effect that many can only be persuasive with already sympathetic audiences. The challenge for the community of legal commentators is to present strong, well-reasoned positions while making their case to the broadest possible audience, in constant dialogue with those who disagree with them. An obstacle to success in this endeavor is denial or fudging of the complexities of difficult issues, the suggestion that there is one clear, good faith answer.
When the Supreme Court decided the presidential immunity case, critical commentators barely acknowledged that both Democratic and Republican administrations had embraced strong theories of immunity for incumbent presidents on reasoning that necessarily applied to some extent to former presidents as well. The Biden Administration itself argued before the Court for a measure of post-term immunity. Whatever view one takes of the opinion’s craftsmanship, the politics of retribution now in full swing suggests that some immunity is well-founded. And even as progressive commentators energetically critique the Trump administration’s aggressive assertions of presidential removal power, they must consider the implications of the position they take now for how the next president they approve of can assert control over the hostile government he or she may inherit.
One further dimension of the problem is the rise of intemperate rhetoric in critiques of the Supreme Court’s response to the Trump presidency. This is by no means to say that important questions might not evoke passionate responses entirely appropriate for forceful expression. But accusatory rhetoric raising questions about the political or personal motives of Justices, whether in the majority or the dissent, connects only with two publics: the segment that intensely dislikes particular decisions and welcomes these kinds of attacks, and another that will be confirmed in its belief that the democracy debate is a sham, warped by political agendas. Expert chatter about the conservative majority as partisans in robes who lie down for the president, or the dismissal of the dissenters as motivated by an anti-Trump agenda, does not in these fraught times serve the wider public well. As Richard Re has rightly warned, it is particularly disturbing when the Justices themselves begin to exhibit some of these same rhetorical excesses.
Legal experts have a leadership role in informing vitally important arguments about the health and reform of democratic institutions. They have contributed much to this debate but always do best when resisting the powerful pressures of polarization and ideology that are among the very sources of disquiet in American democracy.