What Does Legal Authoritarianism Look Like?

What does authoritarianism look like when it operates through law? In the first episode of “Lawyer Without Law,” hosts Katy Glenn Bass and Madhav Khosla speak with Princeton University Professor Kim Lane Scheppele. They explore historic examples of the legal profession’s role in democratic backsliding around the world and in the United States. They examine how legal systems can consolidate power while maintaining the appearance of legitimacy—and what that means for lawyers and legal institutions as democratic norms come under strain.

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Transcript

SPEAKER_01 0:00

Hi everyone, a quick note before we start. This conversation was recorded before Viktor Orban lost his re-election bid for Prime Minister of Hungary. After 16 years in power, he was defeated by Petr Majar. Okay, now let's start the show.

SPEAKER_04 0:16

The dominant way that democracies fail is through aspirational autocrats, being elected in free and fair elections, coming to power, changing the law, usually in a legal fashion, until the next thing you know, there's no way to get rid of the autocrat.

SPEAKER_01 0:34

Hello and welcome to Lawyering Without Law, a new podcast by the Knight First Amendment Institute, where we'll explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country's slide into authoritarianism. I'm Katie Glenn Bass, the research director at the Knight First Amendment Institute, and you've just heard a clip of a conversation with our first guest, Professor Kenlain Shepley, who we'll introduce in just a minute. Joining me in co-hosting this podcast is Professor Muddev Kosla, the B.R. Ambedkar Professor of Indian Constitutional Law and Professor of Political Science at Columbia University and the Knight Institute's senior fellow. Madav, I'm really looking forward to hosting these conversations with you.

SPEAKER_02 1:16

Thank you, Katie. I'm really looking forward to it as well. Over the next six episodes, we'll bring both historical examples, comparisons, and contrast to what we're seeing now, as well as more specific conversations about democratic backsliding both in the US and around the world, and in particular the legal profession's role in these developments over the last few years. Joining us today on our very first episode to explore the use and deployment of the law and legal systems as a central feature of contemporary authoritarian populism is Kim Lane Shepley, the Lawrence S. Rockefeller Professor of Sociology and International Affairs at Princeton University. Professor Shepley's primary field is the sociology of law, and a lot of her research examines the rise and fall of constitutional governments. She's worked extensively on the undermining of civil liberties during the post-9-11 period, and in recent times has been integral to debates on the transition from democracy to authoritarianism. Professor Shepley, welcome to Lawyering Without Law, and thank you for joining us.

SPEAKER_04 2:18

It's wonderful to be here, although the thought of being without law is vaguely terrifying.

SPEAKER_02 2:22

It is, and hopefully we can figure out exactly how that happens. So just to start us off, Kim, I was wondering if you could just share a little bit about your contemporary work on illiberal government and on democratic backsliding.

SPEAKER_04 2:38

Well, when I started working on this line of research, I actually didn't think it was going to be about backsliding democracies. I thought I was looking at, well, I don't know, front sliding democracies, countries that were coming out from under Soviet tutelage, that were setting up democracies, first in what was Eastern Europe, then we called it Central Europe, and then in the former Soviet Union itself. I worked for four years at the Hungarian Constitutional Court in the 1990s. I worked for one year at the Russian Constitutional Court in the early 2000s. And I thought what I was watching was the onset of democratic institutionalism, rule of law, and respect for rights. Now, I guess I shouldn't have been massively surprised. Both Viktor Orban and Vladimir Putin, once they came to power, were lawyers and they understood how law worked. And so as a result, when they decided they wanted to stay in power for the long term and not allow power to rotate, they wound up dismantling the very institutions that had just been set up. And they did so by law. Because there were lawyers, they could work out what are the soft spots in the system that, if you pushed on them, would generate dictatorship rather than democracy. They worked with their parliaments to push laws through. They worked with courts to increase the number of judges actually off and on courts, packing them with their own people, and using perfectly constitutional measures or what looked to the outside like perfectly constitutional measures. They were able to little by little lock down dictatorship in their hands. But if all you looked at was the form, you wouldn't have realized that dictatorship was coming back in those places. You would have thought, ah, a new leader is elected and he's changing the law in order to fulfill his mandate. So it took quite a lot for other people to catch on. But that leading edge, shall we say, of dictatorship by law turned out to be a transportable model. You could pack it up and you could move it to other countries. And now that's the dominant way that democracies fail is through aspirational autocrats being elected in free and fair elections, coming to power, changing the law, usually in a legal fashion, until the next thing you know, there's no way to get rid of the autocrat.

SPEAKER_01 4:57

I know you've written about this a lot, this concept of autocratic legalism. And is it fair to say that when you first started describing that or sort of following that story, it was something that was characteristic of new democracies or countries transitioning out of authoritarianism?

SPEAKER_04 5:13

Yeah, those are the ones I focused on first, but then it turned out that, you know, it spreads. Right. And the fact at the beginning, I think a lot of analysts didn't take this movement all that seriously, precisely because it was easy for them to say these are new democracies, they weren't really established, easy to knock over, and so therefore, you know, what what happens in new democraci stays in new democracies, and long-standing democracies are relatively immune from all that. But now we know that that's just not true.

SPEAKER_01 5:42

So this concept of autocratic legalism and this belief that it was something confined to new democracies, how do you see this now that we're in 2026? You know, is this what the United States and other established democracies are beginning to grapple with, this same sense of autocrats manipulating the law?

SPEAKER_04 5:59

Yeah, so I think we're certainly seeing that in the United States, what we see is that, you know, President Trump, elected in a free and fair election, comes to power, and he issued, I believe it was something like 325 executive orders in his first year. The only president who had issued more than that was Franklin Roosevelt, who was also involved in a constitutional revolution. You know, these same methods can be used whether you like the revolution or not. And now what we see is those executive orders being litigated up to a friendly Supreme Court that Trump had an opportunity to, shall we say, change the composition of in his first term. And if all of that succeeds, if the Supreme Court goes along with the executive orders over existing statutes and over prevailing interpretations of the Constitution, we're going to find ourselves with a new constitution. Now, let me just say this isn't something Trump dreamed up on his own. First of all, I think we attribute way too much to him when he's out playing golf most of the time. This is something that really was a kind of blueprint that came from the Heritage Foundation, Project 2025. You can see him just marching along through all of the things Project 2025 identified. But it turns out that Project 2025 was not just an American project. As it turns out, Viktor Orban, Prime Minister of Hungary, and his big think tank, the Mathias Korvinus Kollegium, is the big mothership in Hungary, and the similarities are so strong between what Orban did to take over his government in 2010 and what Trump is doing in his first year, that when I read Project 2025, the first thing I said was, wow, somebody's really studied Hungary closely. And sure enough, what we've seen is the very same script being applied here. To fill that in, let me tell you just two things that were crucial in Orban's first year. The first thing he did was to come into power, and while he'd been out of power, they he analyzed the national budget to figure out what are all the ways this budget supports people who are likely to oppose me, comes into power and immediately slashes the money for everything. Puts the opposition into disarray, he defunds them, they're running around trying to get their money back and not paying attention to what comes next, which is this shoveling through of tons and tons of laws. You know, so what happens again, the other thing that Orban did was to come in, suspend the civil service law, mass fire public employees so that he could then reinstate the civil service law, hire his own cronies into those positions, and have an administrative state that was not going to stand up to him. So just those two things alone account for a big chunk of the disorientation when Trump came in in those first few months. So really the same kind of playbook happening again right here in the US.

SPEAKER_02 9:00

So Kim, one of the things that I think somewhat follows from your important insight is that we are seeing changes through law, but we are also therefore in some ways seeing changes through lawyers. And lawyers, in a way, are central to the changes that are happening. And even before these developments became front and center in our lives, you've actually spent a lot of time thinking about how lawyers may not actually be the natural allies of liberal democracy. And some of your work has challenged the conventional understanding of what academics refer to as, you know, the legal complex and things like that. And could you walk us just a little bit through this?

SPEAKER_04 9:42

Yeah. So first of all, Orban and Putin themselves were lawyers. A lot of these autocrats that come to power either are lawyers or they have lawyers that they're working with in close association. And part of that is because, you know, as I put it, I have a chapter title in this book that I'm almost done with. Book, by the way, is called Destroying Democracy by Law, right on point to your podcast. One of the chapter titles is called Law is the Way the State Talks to Itself. Okay, now the reason why I use that formulation is that it's one thing as you know, king, to command somebody to do something in particular. But the only way you can command large numbers of people effectively is to give them general orders, right? And those general orders are what law actually is, particularly administrative law, particularly orders to the administrative state itself. But also by entrenching ideas in law, it means that you get followers of two kinds. One are the kinds that were already on board with your political program. They do anything you told them to anyway. But the second thing is you get on board the rule followers, the people who say, because something is law, therefore we have to obey it. And any successful democracy should have a large number of people in that second category. That's how this whole thing works, you know. And so if you change the law, people may say, well, I disagree with it, but it was made by an elected official in a proper process, and therefore I am bound by it. It's exactly what you want citizens to think, right? These are good citizens. So when you put into that process laws that actually have the effect of undermining democratic institutions, you get a lot more buy-in than if you simply did it by edict or by force. And so it legitimates the entire enterprise of undermining democratic institutions. So that's why law becomes so crucial. Now, who are the lawyers who do this stuff? Some of the lawyers who do this are lawyers who believe in the leader and believe in the program. But oftentimes you get lawyers doing this because law is like a giant math problem if you like math. It's just fun to play with the rules and think, well, gee, you know, how would you do this? How would you do that? Is there a way you can make an argument for this, that, and the other thing? And frankly, you know, legal education in many places, and here I include the U.S., lends itself toward exactly this kind of lawyering. Because how often do we take first-year law students and say, argue the opposite of what you believe? Come up with the best argument for the position that you don't have. How often do we say that lawyers in private practice have the highest duty to represent their clients within the boundaries of law, but often making creative legal arguments that would lead to a result that the lawyers themselves would not choose? So, yes, we have legal ethics. Um, yes, lawyers have some boundaries, but think about what legal ethics looks like. Very few of the rules are about the values that lawyers are supposed to uphold. So, yes, they're supposed to uphold the constitution, that's the main values-based rule. But what if the constitution is changing? What if the new political movement says the constitution's something else? You can swear allegiance to a changing constitution and be completely on board with an autocratic project. So lawyers have learned to be hired guns, they've learned to think that clever legal arguments are good lawyering, and they have much less training and much less grounding in the values that underwrite democratic institutions, so that the lawyers themselves may not realize how much they're undermining democratic institutions with the very things they're recommending.

SPEAKER_01 13:32

So I think that's exactly right. And we've been thinking a lot about the role of legal education in terms of what young law students are told when they're in training in terms of what the expectations are and the duty to zealously represent clients. And I'm wondering, are there comparative examples of different ways of educating young lawyers that you know of from other countries, or what would you do if you were in charge of reforming legal education in the United States to try to remedy some of those problems, especially in such a polarized time?

SPEAKER_04 14:04

Right. So this is very difficult because in the United States, what we teach is yes, you are bound to the Constitution. You swear an oath to the Constitution, not to the president. And yet the Constitution itself, how do we know what the Constitution is? And the answer has been the Supreme Court tells us that. But what if the Supreme Court's been captured, especially by a faction that isn't committed to democracy? The Supreme Court starts issuing cases with which you disagree, but you say, my oath to the Constitution is an oath to the Supreme Court. We don't have a way for lawyers to distinguish between a democratic constitutional vision and contingent decisions of a court that may have come under political direction. And so this is what you see happening right now in the U.S. Um, I have two sets of lawyer friends. One is the set of lawyer friends, and mostly these are people who have international experience because they've seen this happen elsewhere. They say, wait a second, this is a counter-constitutional project. The point of this is to unsettle and undo the constitutional orders that we have. So therefore, I'm going to go into the resistance and fight to prevent that from happening. So that's a small set of lawyers. The other lawyers are saying, well, you know, we're still doing law, we're still litigating, we're still pretending like all this is real. Yes, we're disappointed with Supreme Court decisions, but we've learned to live with the ones, and then you go back to fight another day. And everybody is assuming that all the judges up and down the system are still doing law. And that's the big question. You know, what happens when you get autocratic capture? One of the first institutions the autocrats go after are the courts precisely to take advantage of the fact that lawyers are trained to follow them. Okay, so then to legal education. So then how do we train lawyers elsewhere? You know? This is where it seems to me we have to be thinking about courses in sort of democratic and constitutional theory that are not tied to court decisions, that are all about the point of the enterprise. So let me just tell you one course I used to teach when I was a law professor. I was a law professor at Penn for a decade. We were trying to reform legal education as every law school keeps doing. We decided that students were reading too many cases in their first year, that they needed a break from that. We had an interdisciplinary faculty, so we put in place this requirement that students had to take one elective that would get their nose out of case law. So I decided to offer a course which was a role play of Madison's notes on the Constitutional Convention. And if you read that, you know, it's a very dense, it's like reading the phone book, frankly. I mean, it's not, you have to really push yourself through it because it's just a lot of keeping track of who said what and exactly what the votes were, and it's really hard. Turns out if you do it as a role play, take it as a script for a play, and you assign students to play all the different parts, right? So somebody's Elbridge Gary, and somebody's Ben Franklin, and somebody's James Madison, etc. And then what happens is the book comes alive. So what I would do with my students, I'd get them to take up these various roles, then I'd have them go off and read biographies of their characters, read something about their states, how they were elected to serve in the Constitutional Convention. And then each person had to keep track of what their character said through the debates, and we kind of reenacted them in class. And then when we got through the whole thing, these delegates had to go back to their states and work their way through the ratification conventions and report back to the class on what happened in the ratification conventions. So I thought of it as my anti-originalism course because once you've done that, you realize there were so many different views on offer, so many different debates, that, you know, the idea that the framers were one kind of thing is really, you know, just is belied by a simple reading of all of this. But I realized in retrospect that part of what we were doing in that class was really asking the question, what should constitutions do? And I think it empowered students both to challenge even the Supreme Court's version of originalism now, right? But to recognize that in any robust constitutional democracy, you're going to have a lot of different views on offer. And some of them lead down the path to dictatorship, and some of them allow you to maintain your democracy. So that was just one example, you know, of a course that you could teach that doesn't put the Supreme Court in the middle of what the constitution means, gives people resources to fight back.

SPEAKER_02 18:36

One of the other things that I think that is sort of worth perhaps talking about is that the legal profession is self-regulated, like the professions are in modern societies. And how effective do you think that self-regulation has actually been in curbing the problem in the countries that you've studied? Because you're absolutely right that we don't really have a system where lawyers are taught to distinguish between ordinary democratic moves and a kind of democratic backsliding. I was just wondering if, like, for instance, in Hungary, has the bar pushed back at all against Orban or have or the lawyers who've supported his efforts? Or, for example, have you seen actually the bar refusing to represent people who might be against the government?

SPEAKER_04 19:23

Well, unfortunately, no. Not in Hungary, not in Russia. They all caved. You know, and part of this is because, you know, if if what you're doing as a lawyer is winning cases in court and the courts come to be captured, you know, fighting back against the system just guarantees that your clients are going to lose, right? So you need the bar to have a bigger field of vision than just representing their clients. Occasionally what will happen is you'll get, in some places, the bar pushing back. So, for example, in Poland, the bar pushed back. This was a pro-autocratic government came in in 2015. They immediately started attacking the judiciary. Um, one of the things that they were attacking was, among other things, the role of the bar in picking judges, which they diminished. But it was also the case that they were using unlawful methods to put judges onto the constitutional tribunal. The bar actually stood up to that, as did a number of judges. And so what you'd see are these lawyers' marches, you know, where everybody would show up in their legal robes, the kind of things they'd appear in court in, and they would march in the streets with signs saying, Save our judges. It was really quite moving. And when the president of the Supreme Court was fired, she insisted that she'd been fired unlawfully. She decided to go to work as if she had not been fired. Hundreds of lawyers showed up to escort her into the courthouse. So there are moments when you see the bar really rising to the occasion.

SPEAKER_00 20:53

Free courts now is the clarion crime. Outside the courthouse in central Warsaw, demonstrators demand the removal of a judge appointed by the populist conservative government to replace one of a more independent spirit. They accuse the country's justice minister of being a judicial puppet master.

SPEAKER_03 21:12

We are still on the battle for the rule of law in Poland.

SPEAKER_04 21:16

The rule of law one thing that I think helped that in Poland was the fact that Poland is part of the EU. They're now sort of EU-wide bar associations, so that if your country is coming under attack, the next country over may not be. And you get sort of an echo back from people outside your system about what your system looks like to others. And so there were a number of these bar groups that then went to court to challenge the fact that the European Union was not doing enough to preserve judicial independence in Poland. So again, it was lawyers' associations across Europe that did that. Now, you know, it helped that Poland was the second case. Hungary was the first when the Hungarian judiciary was being compromised. It was so novel people didn't know what they were seeing. But just to bring this back to the U.S., one of the interesting things that happened here well before Trump came back the second time. I've been going around talking to different bar associations because they all think all these, you know, comparative examples are kind of interesting. And one thing I started doing in some of these bar association talks was to go in and look at what big law did in those countries when the autocratic consolidation started. And the answer was that they turned tail and ran. They often turned over their legal business to local lawyers and they just shut down their offices. So here's the thing big law was not brave in other countries. You know, these big international law firms with thousands of lawyers, with you know, offices in every major capital. When the autocratic impulse came over these rulers, the big law firms hung in there for a while, and then they left. What do we expect them to do in the US if that's what they did abroad? And I'm a little surprised because I would talk to these bar groups and like literally name the firms that left, Hungary, that left, Poland, that left Russia, etc., you know, and no no response. It was so interesting. So from that, I guess I wasn't surprised to see what's happened here, right? Which is yes, Trump singled out law firms with executive orders and some of them caved and some of them fought. That's usually the story. But what really happened was that all the law firms, including the ones that fought, have really avoided getting into the trenches fighting against Trump's executive orders. They'll still defend their clients even if their clients are leaned on by Trump, but they won't put their necks out and actually start to figure out how to use law creatively to push back against the constitutional revolution that we're seeing. Big law is just all out. And the bar associations, when they get complaints that, you know, for example, that there are DOJ prosecutors who have violated basic legal ethics. You can actually list the numbers of the rules that they violated. The bar associations just say, oh, we're going to wait for a criminal procedure before we look at what our lawyers have done. Or they start an endless investigation that goes down a rabbit hole and never comes out. So there's a couple of bar associations that have disbarred people who have obviously acted in violation of their oaths, but not very many. So the U.S. bar is, shall we say, protecting itself and not protecting the Constitution?

SPEAKER_01 24:36

That's really interesting. I didn't know that story of the big law firms in the other countries. Can I ask, I mean, how how different or not is the situation of U.S. civil society where the bar in the U.S. is lawyers like Knight Institute lawyers, where we are bringing cases from a more independent, neither government nor a big law stance? Is there a difference in terms of the size and the relative wealth of U.S. civil society versus some of these other countries? And do you think that hasn't had any meaningful difference?

SPEAKER_04 25:06

Yeah, so one of the things about established democracies as opposed to new ones is that the established ones tend to have bigger and deeper civil society organizations. And so what you see in the U.S. is Knight Institute, Democracy Defenders, Democracy Forward, Public Citizen, Protect Democracy, ACLU, and Democracy Docket, Mark Eliasis from doing all the voting stuff. What you see is there's a good half dozen to dozen groups like that that are carrying the heavy load of fighting back in court because the lower court judges are still holding the line, even if the Supreme Court's not. And it's worth litigating, it's worth fighting this stuff just to throw sand in the gears, you know, slow things down. We forget that there's about 150, 160 injunctions that are still holding out there. A recent report showed that of all those big science grants that were cut at the beginning of 2025, by the end of the year, 80% of them have been restored through litigation. So litigation is still an important path. And it's these NGO interest group, mid-sized, overworked, stressed-out groups of lawyers that are handling the huge fight, right? I'm struck by the big difference between what's happening now and what happened after 9-11. So after 9-11, there was a lot of overreaction on the part of the Bush administration. There was some civil society pushback. But then the torture memo came out. Then it was apparent that the U.S. government was aiding and abetting a program of what they were calling enhanced interrogation. There were renditions and detentions that were being done in violation of basic due process norms of international law. And so as soon as that came out, it turns out that big law was all in. Every single firm, from left to right, devoted pro bono work to torture victims, to illegal detentions, to those rendition cases. I know because I actually was running a listserv for all the lawyers that were involved in all that work to pushing back against the Bush administration and the war on terror. It could not be more different now. Big law has just gone silent. What you see now are partners that are quitting, some of them are forming their own firms, but they're small firms. They don't have the immense deep pockets of big law. So I feel like from a legal standpoint, we're fighting the onset of dictatorship in the United States with one hand tied behind our back by lawyers who insist upon thinking that we're still in some kind of normal politics. And I'm very worried about that. If the bar isn't there to defend the Constitution, the legal order, basic rights, due process, then what's the average person to do who doesn't have the skill set to even know how to name those things? So yes, I'm a little disappointed in the organized bar. We need to do a whole lot better than that if we're going to save democracy. And lawyers are going to be crucial to that, even if they can't do it alone.

SPEAKER_02 28:14

Kim, do you think some of that potentially has to do with the fact that a lot of people in big law don't see themselves as lawyers in the way that you and I conceive of lawyers? Maybe actually, like the people who you mentioned in Hungary, maybe they just see themselves as basically figures engaged in transactions rather than your Blackstonian advocate who's meant to stand up for things. And, you know, I mean, it could maybe it's not fortuitous that the firms that actually stood up against Trump are those with large litigation practices. And so actually a lot of what you and I think of as big law is basically just bankers in disguise or something like that. I mean, I'm obviously putting the point provocatively, but I was wondering whether there's something about the changing character of the profession itself that captures some of this dynamic.

SPEAKER_04 29:06

Yeah, what you say is what actually quite a few people have been arguing, you know, that basically lawyers are doing much more than law and they're doing transactional work, they're arranging their clients' finances, they're engaged in preventative action to keep them from ever being sued. They're organizing their paperwork, essentially. So, yes, that happens. But here's what's really interesting: it's, you know, until gravity disappears, you don't notice how much you rely on it. And transactional work relies on there being a fundamentally rule of law-based system that underwrites all those transactions. There's a wonderful book by um a legal anthropologist Annalise Riles, and uh she studied the Japanese stock exchange. And what she studied, and if you think about it, you know, unless you're in this line of work, you never think about this problem. If you buy and sell a stock, suppose you buy a stock, somebody had to sell it. Okay, but when you buy and sell in an exchange, you have no idea who the seller was when you buy stock. Somewhere underneath all that, there's a whole bunch of lawyers writing contracts. And Annalise studied the backroom of the Japanese stock exchange and all the people, all the lawyers who were matching the buys and the sells to figure out how to do the legal contract that underwrote the exchange. Now you don't see those legal contracts unless there's some problem. But they have to be there so that there won't be a problem. And a lot of the legal system operates invisibly like that, where, you know, it just is underwriting everything we count on. You know, when I teach sociology of law, I teach, you know, what is marriage, what is a passport, what is money, what is Princeton University. They're all legal forms. They're not something that exists apart from the legal guarantees that underwrite them. So you could be a transactional lawyer thinking that all you're doing is just rearranging the subsidiary over here and moving assets over there and setting up some kind of firewall so that a suit won't deprive the firm of all of its resources over here. All that stuff. But all of that stuff may not take you into a courtroom, may not take you near the government. But if you don't have the infrastructure of courtrooms and governments and basically the guarantee of the rule of law that a democratic government provides, all those transactions are simply paper. And I just wish lawyers realized they rely on, like think of it as legal gravity, right? That holds everything down and keeps it from floating off into the air. They can't escape that, and they have a responsibility for protecting that.

SPEAKER_01 31:36

Do you have any sense that lawyers in the U.S. are becoming more aware of that legal gravity or sort of becoming more aware of that fundamental underpinning of the rule of law that they need? You know, like is there a tipping point that we should expect?

SPEAKER_04 31:50

Well, yeah, I think we're seeing it a little bit, right? I mean, so first of all, when Trump first came in, things happened so fast and people couldn't believe what they were seeing that they preferred not to see it. And I think now the destruction, the rubble is, you know, the Justice Department lies in rubble. You know, Trump's picture appears on the Justice Department. I mean, there's so many signs that our legal order is not in good order. There's so many signs that we're getting from the Supreme Court that the Supreme Court doesn't know what the law was, or rather, it doesn't care what the law was. It will do something else. I think if you're paying attention, what you realize is we're very far into autocratic capture of our legal system and we're very far into the destruction of the very institutions that will allow peaceful transfers of power in the future. Okay, now if people realize that, I mean, one of the problems is that by the time you realize it, it may be too late to fix it, right? So you're then kind of in this situation where all you can do is patch the rubble back together again somehow. So I think we're already so far along in the destruction of democratic institutions that we're now at the point where you have to realize we're not just gonna pick up the rubble of the Justice Department and try to patch it back the way it was. We're gonna have to reimagine the kind of thing the Justice Department is. We're not gonna just be able to go to the Supreme Court and say, like, cut it out, follow your own precedent. We're gonna have to reimagine what a Supreme Court will look like. I mean, this is really major reconstruction, I think. So, just for example, what most countries do that have been through dictatorships, one of the first things they do is they separate the justice ministry from the prosecution service and they wall off the prosecution service from political influence. Wouldn't that be a good idea for us? You know, we just happen to have this Justice Department because we were the first comer and all those things are packaged into one institution, but most governments separate them. There's also another thing, which is that most governments don't have judges that stay on the bench for 30 years at their highest court level. So they have term limits, they have uh age limits, they have processes that guarantee that the judges who get appointed, especially to the highest court, are named in procedures that require cross-party agreement. You know, you could start imagining importing all these ideas that other countries have come up with. I mean, America hasn't been great at borrowing back because we think we invented it. Right, you know, but it's like we're driving around in a Model T Ford and everybody else has got these fancy cars, you know, that can do things that Model Ts couldn't do. And we're saying, but isn't the Model T wonderful because it came first? You know, constitutional drafting has gone way past where the U.S. is. And we're now so far into this system of autocratic capture that one of the things I do is I teach about all these other systems. And I left law school teaching in order to teach the undergraduates before they get to U.S. law school. So that when they get to U.S. law school, they're gonna say, really? That's how we do things? There are all these other ways you could do things. Why do it like that? So I'm being as subversive by getting to the undergraduates first. But I think we need to look around a little bit.

SPEAKER_01 35:06

Kim, is there anything else that's on your mind on these topics that you know so well that we haven't touched on yet?

SPEAKER_04 35:11

Yeah, so I actually didn't lean very much into the self-regulation question. It's the same issue that's now coming up with regard to academic freedom. When you have a self-regulating profession, it actually has to take self-regulation seriously. And bar associations have been sort of polite clubs. They haven't wanted to set and enforce the rules very seriously. Yes, there are disbarment procedures. It's usually in egregious cases by lawyers who aren't that powerful. You're not seeing very powerful lawyers doing very big things getting disbarred, right? And we have the same problem with academic freedom that we've allowed things to happen in universities that probably shouldn't have happened if we had been policing standards of not just disciplinary conduct, but of what universities are supposed to be for. So we have to think about self-regulation as not just uh are the I's and T's, you know, I's dotted, T's crossed in particular behavior of those who are regulated. We have to think bigger and more theoretically about the principles that we're supposed to be defending. And there's a reason why the bar has always been thought of as separate from ordinary jobs. It's because it's a normative enterprise as well as a practical one. Americans used to think if we swear an oath to the Constitution, that takes care of itself. What if the Constitution breaks? Then what? You know, and we're sort of in that moment when just following decisions of the Supreme Court as an oath of office. It may come, I should say this, this is my revolutionary statement, but there may come a time when the patriotic and constitutional thing to do is to disobey a decision of the Supreme Court. I hate to say that. Other countries have gotten to that point. You can't just do it as an act of force and violence. You have to do it because you're invoking constitutional principles that are more important and more enduring. And if we have no idea what those are, we don't know what the point is at which we have to say that just having the Supreme Court tell us what the Constitution means is not enough. And that's what I wish the bar would think about. It's a moment when lawyers should be among the bravest, because the tactics that are being used to dismantle democratic institutions are legal ones. The lawyers will see what's happening before everybody else. We need to be the early warning signal to everybody else that this is what's going on. And we need to play a key role in building these things back because ultimately a government of laws is a government of laws. And lawyers do have some privileged position in figuring out, designing, and enacting those laws. And so, where's the bar? We need the bar.

SPEAKER_01 37:57

This has been such a wonderful conversation. Kim, thank you so much for making time to talk to us today and for sharing all of your insights from your years of scholarship and advocacy.

SPEAKER_04 38:08

Well, thank you so much for doing the whole podcast. And I really hope you get a lot of listeners. Us too.

SPEAKER_02 38:13

Thanks so much, Kim.

SPEAKER_01 38:23

Learning Without Law is a production of the Knight First Amendment Institute at Columbia University and is hosted by Money of Coastal and me, Katie Lynn. This episode was produced and engineered by Dustin Flipping, by Connor Menzies and Sophia Roman. And this point is our executive producer. Our music comes from negative elements. The art for our show is designed by July. Thanks to Kim Lane Shepley, who joined us for this episode. Learning with a love is available on Apple Unify and wherever you listen to podcasts. Please subscribe, share, and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That's Knightwitha K. And follow us on social media. We'll see you next time for a conversation with Harvard Law Professor Lawrence Lessig. Bye for now.