Since the beginning of the year, the Trump administration has been trampling on different sectors of the U.S. state. Numerous commentators, both from the U.S. and abroad, have argued that the issue of a potential “constitutional crisis”—one that could pave the way for authoritarianism—essentially hinges on whether the government complies with court orders. In contrast, Professors Ryan Doerfler and Samuel Moyn have argued that this focus is, at the very least, misplaced. So far, rather than protecting democracy, the courts have helped pave the way for the current situation. This raises important questions about the right pro-democratic strategy—not only in the U.S., but also in European countries such as Germany, where the far-right is on the rise and the judiciary is widely seen as the bulwark against authoritarianism.
In this conversation, Samuel Moyn explains the dangers of placing too strong a focus on legality in the fight against authoritarianism. Drawing on the work of Judith Shklar on legalism, Moyn argues that lawyers often tend to believe that the law operates independently of politics, that its interpretation is straightforward, and that simply following the rules is sufficient to fulfill their duties. These beliefs carry the risk of discouraging critical reflection on whether the rules themselves are just, and they also pose the danger that, when progressives lose in the political arena, they may rely too heavily on the law in the hope that it will offer protection. This, however, is far from guaranteed, as the law is a domain where opponents of democracy and human rights also hold power. In the context of the United States, Moyn points out that debates about “reclaiming the judiciary” may overlook a deeper issue: that institutions like the Supreme Court have evolved into overly powerful policymakers, contributing to phenomena such as the rise of Donald Trump. He argues that disempowering the courts could not only return policymaking authority to elected officials but also help avoid placing excessive hope in an institution that is unlikely to meet such expectations.
The second part of the discussion shifts to current events in Europe. Moyn raises doubts about whether militant democracy—particularly the party ban procedure—is an effective tool to counter the rise of right-wing politics in Germany. He suggests that militant democracy may only be viable when it is unnecessary, and unworkable when it is truly needed. After also addressing the possibility of Marine Le Pen being barred from running in France’s next presidential election, the conversation concludes with a reflection on what a progressive political strategy against the far right might involve. Here, Moyn argues that attempting to imitate right-wing politics in order to win back voters is likely to fail, as people tend to prefer the original. Instead, he suggests that for progressive parties, the more effective path may be to move left.
Samuel Moyn is the Kent Professor of Law and History at Yale University, where he also serves as head of Grace Hopper College.
The conversation was conducted by Konstantin Kipp. Alina Young edited the audio file.
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