Sources of Democratic Resilience

On American Legal Culture

There’s an interesting dynamic in the hallways of my department these days. The faculty that research American Politics seem systematically more optimistic than those of us that study Comparative (specialists on any other country in the world).

The Comparativists look at Trump and fret about the possibility of democratic erosion and even American authoritarianism. We all see a character from a story we’ve read before, and that story usually doesn’t have a happy ending. Many of my colleagues and students in Comparative are from other countries and have direct personal experiences living through repression and these sorts of political transitions.

The Americanists I’ve spoken to seem to have greater faith that our democracy will persist, that our institutions will hold. They tend to not use the language of authoritarian politics to describe what’s happening, not yet at least. This is not uniformly true of course. There are plenty of very worried Americanists, but the general difference in perspective is noticeable.

I have learned a lot from those cross-subfield interactions, which are always humbling and informative. I am not trained as a specialist in American politics, and I need to read more to appreciate the special features of our system and political history.

There is a famous article in the China field by Andrew Nathan which describes the CCP’s “authoritarian resilience”—the features of that system that have allowed the regime to last as long as it has. In some upcoming posts, I thought I would outline some of the unique features of the U.S. system that may contribute to our “democratic resilience.” This isn’t meant to be an exercise in finding irrational hope, but about placing the U.S. in comparative context. We live in the longest lasting, most robust democracy in the history of the world, and there are reasons for that.

Today’s post will be about lawyers.

American Legal Culture

It’s not something most of us are aware of, but the United States has one of the strongest legal professions in the world. We have 197 accredited law schools, training roughly 35,000 new lawyers per year. Over time this has yielded a stock of about 1.3 million active lawyers, practicing the full range of civil, commercial, and criminal law. This is equivalent to one lawyer for every 256 people in the United States.

This is a huge number. In fact, we are blessed—and I do mean blessed—with among the highest legal densities in the world. The only countries with a higher number of lawyers per capita are Israel, the Dominican Republic, Brazil, and Italy.

Source: World Population Review

As you might expect, Americans are also unusually litigious. Collectively we file over 40 million lawsuits a year, the highest total number of lawsuits in any country. There are lawyers literally recruiting clients on highway billboards and subway cars. This is unusual— most countries don’t allow this. This is what my commute to work looks like:

Of course, there are some costs to this. There are valid concerns about whether Americans are excessively litigious and too willing to bring frivolous lawsuits. And not all lawyers are saints— there are plenty out there willing to fight on the side of lawlessness and tyranny. One of them is sitting in the Vice President’s office. But still, I’d rather be living in a country with too many lawyers than too few, especially at a moment like this.

We also have a unique set of institutions and legal practices dedicated to protecting citizens from government overreach. The ACLU has 54 affiliate offices spread throughout the country, with 100 attorneys on staff and a network of over 2000 volunteer attorneys. They have a budget of nearly $400 million. They alone handle more than 6000 cases a year and appear before the Supreme Court more than any other organization. There are also dozens and dozens of smaller organizations dedicated to various forms of public interest litigation.

We take these types of institutions for granted, but we would notice if they were gone. Many other countries with eroding democracies simply do not have the legal sector that we enjoy. According to a report from the Varieties of Democracy Institute (VDEM), the democratic countries that have experienced highest level of autocratization in the 2010s were: Hungary, Turkey, Poland, Serbia, Brazil, Bangladesh, Mali, Thailand, Nicaragua, and Zambia. On that list, only Brazil has a legal density on par with that of the United States. No fully authoritarian countries have lawyers like we do. China’s best “rights protection lawyers” have mostly fled the country or languish in prison.

We know that the judiciary as a branch of government has a hugely important effect in preventing democratic erosion. An old political science paper from Douglas Gibler and Kirk Randazzo looks at regime changes across 163 countries with data from 1960-2000. Here’s their conclusion:

“Consistent with the theoretical literature, we find that established independent judiciaries prevent regime changes toward authoritarianism across all types of states. Established courts are also capable of thwarting regime collapses in nondemocracies. Our results for newly formed courts are quite different, however. The evidence indicates that states with newly independent judiciaries are more likely to suffer regime collapses.”

This is doubly good news for the United States. We have an independent judiciary, and it has been independent for a long time now. The Trump administration faces an established, independent court system and a mature legal profession. That is no small thing.

Eroding Independence

It was almost preordained that Trump would attack lawyers and judges in his second term. He is a criminal, after all. And for proto autocrats, the judiciary is usually the key barrier to power consolidation. Trump and the people around him are breaking the law left and right, and the lawsuits and injunctions are piling up. He is seething. Here’s his infamous Tweet about James Boasberg, the district court judge who ruled against the Trump administration’s efforts to deport Venezuelan migrants:

Predictably, the most authoritarian members of the Republican coalition have introduced impeachment proceedings for Boasberg in the House, though it is unlikely to amount to much.

In the next few months, we will see more concerted efforts from Trump to erode judicial independence and the status of the judiciary more broadly. In other countries, these attacks take a number of forms—court packing, judicial impeachment, the removal of lifetime appointments, or even the tacit endorsement of political violence. Here’s Harvard professor Steven Levitsky, the person I often am looking to in this moment, with some perspective on what’s unfolding already:

“We look at these comparative cases in the 21st century, like Hungary and Poland and Turkey. And in a lot of respects, this is worse… These first two months have been much more aggressively authoritarian than almost any other comparable case I know of democratic backsliding.”

The good news is that there are real political costs to these moves, or at least there should be. Almost all Americans—84%, according to polls— agree that Trump should follow court rulings even when they go against him, including 79% of Republican respondents. Impeachment for Boasberg seems to be a political nonstarter and could force Republicans to spend political capital, furthering revealing their authoritarian nature to the American people.

We often assume that the Supreme Court is in Trump’s pocket, but it’s important to remember that the justices have no direct accountability to him. They tend to think of their legacies as longer-term projects, independent of any one President. We’ve already seen John Roberts bristle publicly at Trump’s call to impeach Boasberg, and I imagine Amy Coney Barrett does not appreciate that her sister was threatened with a pipe bomb.

A few months ago, I wrote: “Whether or not Trump evolves from a proto autocrat to a full-on autocrat will depend largely on the petri dish of institutional constraints around him.” Our legal culture and judicial tradition are the antibiotics on that petri dish. They may well stop Trump from evolving completely, and at a minimum they should weaken him.

As Stanford judicial politics specialist

Adam Bonica

notes, the courts will need our support as well, especially if judges and lawyers continue to be targeted with violence. All of these processes— legal battles, elections, media coverage, popular mobilization— must work in concert to prevent further erosion of our democracy. Next week I will write more about political violence and repression as it relates to the judiciary, which I think will be one of the big stories of the next few years.

That’s all for today. Please share and forward this email to others you think might enjoy reading it. And a note of gratitude to all the lawyers out there, especially those fighting to preserve our political rights and the rule of law. They are working hard right now.

Rory