Learning to defend democracy
Maybe we need more lawyers.
The New Yorker has a fascinating profile of Curtis Yarvin, the weirdo techno-feudalist who serves as a sort of philosopher-jester to the likes of Peter Thiel and JD Vance and all the authoritarian bros who imagine themselves sitting atop the societal-racial hierarchy and believe they must be. It’s a long piece, but there’s a line in there that is sticking in my head:
What wins Yarvin converts is less the soundness of his arguments than the transgressive energy they exude: he makes his listeners feel that he is granting them access to forbidden knowledge—about racial hierarchy, historical conspiracies, and the perfidy of democratic rule—that progressive culture is at pains to suppress. His approach seizes on the reality that most Americans have never learned how to defend democracy; they were simply brought up to believe in it.
Oh boy, that rings true doesn’t it?
That actually sent me back to a recent column by David French, the NYT columnist who is a NeverTrump conservative on the one institution that is — imperfectly — defending defending democracy from Donald Trump’s assertions of authoritarian power.
During Joe Biden’s term, the Supreme Court rejected several MAGA legal arguments, and during his second term so far, Trump is faring very poorly in federal court. According to an analysis by a political scientist at Stanford, Adam Bonica, as of May, Republican-appointed district judges ruled against Trump 72 percent of the time. That number is remarkably close to the 80 percent rate of losses before Democratic-appointed judges.
Trump hasn’t always lost, of course. He won important rulings at the Supreme Court that expanded presidential immunity and kept him on the ballot in 2024, but there is still an immense difference between judicial conservatives and, say, congressional Republicans. Most judges have a spine. Most members of Congress do not.
A paragraph later, French repeats his point: “Another way of putting it is that when there is a conflict between conservative legal principles and Trump’s demands, conservative judges almost always adhere to their principles. Members of Congress do not.”
And that made me wonder: What’s the difference between judges and members of Congress?
One obvious answer is incentives. Judges get their job and then, if they want, they have it for life.1 Members of Congress are always hustling for votes and the money to seek those votes — their jobs and their success is so much more contingent — and so they are (for the most part) inevitably more pliable.
But another difference: Education.
Anybody can become a member of Congress, provided they have the right amount of ambition and skill — there isn’t much in the way of credential requirements beyond citizenship and age minimums.
Judges, on the other hand, have gone to law school.
That’s three years of learning the law and how to apply it. Of learning the “duty of candor to the court.” Of learning the rules of evidence, and the consequences of failing to live up to those rules.
They are, in a very real sense, catechized into the profession.
It’s not “learning to defend democracy” but it’s closely related, and it seems to be the best hope we have2. At least until cases get to the Supreme Court, but that’s another story.
So what’s the lesson here? We obviously can’t give every American three years of legal education. But those of us who love democracy might be thinking more about to the impart the skills and habits of defending it, as well.
Barring impeachment, of course.
There are a lot of lawyers willing to put their skills to use for Trump, but French’s win-loss numbers tell the larger story.