Professor Kim Scheppele went to Hungary in the early 1990s expecting to study democratic optimism after the fall of the Berlin Wall. Instead, decades later, she found herself documenting how constitutional democracy can be dismantled from the inside out.

These experiences and her scholarship framed a wide-ranging conversation on a recent episode of Stanford Legal, where host Professor Pam Karlan spoke with Scheppele, the Lawrence S. Rockefeller Professor of Sociology and International Affairs at Princeton and a visiting professor at Stanford Law School, about how democracies crumble, and why the United States is not exempt.

Drawing on years of on-the-ground research in Hungary, Russia, and other countries, Scheppele explained a central shift in democratic collapse: it no longer arrives through overt rupture, but through elections followed by legal and constitutional maneuvering. Leaders campaign as democrats, win office, and then use technical changes to the law, including court rules, budgetary controls, and civil-service structures, to weaken checks and rig the system in their favor.

The discussion ultimately focused on the United States, examining how party polarization, shifting institutional loyalties, and expanding claims of executive power have made familiar safeguards less reliable than many assumed.

Scheppele is the author of the forthcoming book tentatively titled Destroying (and Restoring) Democracy Through Law (Harvard University Press).

The following is an edited and shortened version of the full podcast transcript, which can be found here.

Pam Karlan: When you started studying Hungary, did you think it was going to have a lot of bearing on the United States, or was it a separate interest?

Kim Scheppele: I, like many Americans, got fascinated when the Berlin Wall came down. It was the sense that Hungary was going to become more like the U.S. and so I moved to Hungary. I lived and worked there for four years at the Constitutional Court, then moved to Russia, worked at the Russian Constitutional Court for a year.

Those were the years of heady optimism. I went to study the robust drive for democracy that lived in the heart of every person who would have the chance to make democracies work. It was, as your Stanford colleague, Frank Fukuyama says, “the end of history.” So no, I didn’t think I went to study failing democracies and unfortunately, Hungary has really led the way toward a certain new kind of democratic collapse. And unfortunately lots of other countries, now the U.S. included, are following in their footsteps. 

Pam Karlan: There was this period after the fall of the Berlin Wall where there were many emerging democracies in the former Soviet Union and the former Eastern Bloc. Some of those have taken root, but a lot of them have failed. What caused the failure?

Kim Scheppele: It turns out that democracy is more fragile than we thought, and it turns out that the way to have a democracy fail is to have someone determined to be an autocrat, pretend to be a democrat, and get themselves elected. I don’t think that Hungarians, or for that matter, Russians or Poles or any of the other countries in what we used to call Eastern Europe, have fallen victim to autocratic capture—none of the populations of those countries really wanted to give up democracy. Because these days, democracy fails not with a coup. What’s so interesting is that  coups were actually the dominant way that democracies were toppled in the 20th century, particularly during the Cold War, but ever since the Cold War ended, that’s not the way democracy fails.

The way democracy fails is through an election, usually a free and fair election, at least the first time, and the person who’s elected says, “I will be a democrat. I will give you, the people … what I promise you, you will get.” And people don’t understand that they’ve taken the first step toward failing democracies until the leader shows up and uses fairly technical legal devices to change constitutional law under the surface, to lock in their power, disable all the checks, rig the election rules, and the next thing you know, you have a failed democracy.  

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Pam Karlan: Have these autocrats always been there and it’s just an odd coincidence that so many of them seem to have come to power in the last decade or so? 

Kim Scheppele: First of all, not that many countries have had the long democratic history of the U.S., but if you look at the U.S. from when opinion poll started in the 1930s, insofar as you can tell, about a quarter to a third of the American public has always been open to voting for an autocrat, and there just were a lot of near misses.

If you think back to McCarthyism, it just happened that McCarthy was in Congress, not in the White House. Or think about what Goldwater might have done if he had been elected, or Huey Long as another populist figure. Think about what Nixon might have done left entirely to his own devices. We’ve had a lot of near misses, but the institutional checks actually worked.

So the question is: if someone wants to be an autocrat and understands that past autocrats were constrained because those checks worked, how do you dismantle those checks—and how do you do it in a way people don’t notice? It might take a long time, but the goal is to weaken the safeguards without the public realizing they’re gone, then sweep in on an election victory and remove what remains. That’s what we saw in other countries, and it’s very much what we’re seeing here.

Pam Karlan: If you’d asked me in 2015 whether the checks in the American system were in danger, I’m not sure I would have said yes. It reminds me of that line in The Sun Also Rises—“First slowly, then all at once.” In 2015, did it feel like the checks were about to fail, or did this seem gradual and hard to see?

Yes. I’ve been nervous for a long time. In the U.S. system, checks and balances are supposed to work because of institutional loyalties—senators defend the Senate, judges defend the judiciary, governors defend their states. That worked for a while. But over time, polarization shifted loyalties from institutions to parties.

Instead of Congress acting as Congress, you started to see the “red team” and the “blue team” overriding institutional interests. When party loyalty cuts across institutions, the checks largely disappear.

This isn’t a new insight. Justice Robert Jackson warned in his Youngstown concurrence that presidential power tends to expand when the president’s party controls Congress. He identified the danger decades ago. The difference now is how fully those partisan loyalties have taken over.

Before the war, Jackson was Roosevelt’s lawyer and a leading advocate of the court-packing plan. As solicitor general and attorney general, he helped Roosevelt push executive orders that worked around Congress’s neutrality acts, arguing that neither Congress nor the courts should stand in the president’s way as war approached.

Then, after the war, he wrote the Youngstown concurrence—but only after a transformative experience. Truman sent him to be chief prosecutor at Nuremberg, where he focused on the conspiracy that allowed the Nazi Party to take over the German state. He saw firsthand how a democracy with a respected constitution—the Weimar system—collapsed when party loyalty displaced institutional checks.

When he returned, Truman’s steel-seizure order in Youngstown was essentially a copy of an order Jackson himself had written for Roosevelt. Colleagues even suggested he recuse himself. Instead, he found it unconstitutional.

I think he had seen what happens when checks and balances disappear under partisan loyalty—and that’s why he ruled the way he did.

Pam Karlan: Is part of the problem that we’re so far removed from the 1930s that people haven’t internalized those lessons?

Kim Scheppele: Yes. Everyone I know who has spent significant time living outside the United States—especially in countries where democracy has faltered—could see where this was heading. Many Americans who haven’t had that experience are still engaged in wishful thinking about which institutions will save us, and when.

I’m less optimistic than many of my American colleagues—not because I want to be pessimistic, but because this is my country too. I care deeply about it, and I don’t want to see it fail. But we need to take seriously the lessons from democracies that have already crumbled.

Part of the reason we’re seeing this happen in so many places at once is that these actors are borrowing the same tactics from one another.

Pam Karlan: You have two chapters in the forthcoming book—one on the “Frankenstate” and one on the “Migration of Unconstitutional Ideas.” Can you unpack those concepts?

Kim Scheppele: Let me start with the “migration of unconstitutional ideas.” Every autocrat wants to appear democratic. In fact, every leader who later turned their country toward autocracy was initially elected in a free and fair election. I’ve looked at the election-monitor reports, and those elections were generally clean. So the problem isn’t how they got into office—it’s what they did once they were there.

Autocrats then focus on removing checks on the executive. To do that, they look abroad and ask: is there something happening in another country that might be constitutional there, plausibly constitutional here, but that would tilt us toward autocracy? They borrow those ideas and repackage them.

That leads to what I call the “Frankenstate.” Like Dr. Frankenstein assembling a body from parts that were normal in their original contexts, leaders stitch together legal provisions from different systems. Each piece may be legitimate on its own, but in combination, they create something monstrous. That’s what’s happening with laws today.

Pam Karlan: One example in the book that struck me as especially “Frankenstate-ish” involves mandatory judicial retirement ages. In the U.S. states, that’s generally seen as a sensible reform—it promotes turnover, avoids incompetence, and doesn’t require targeting individual judges. But you show how Viktor Orbán repurposed that idea in Hungary. Can you walk us through that example?

Kim Scheppele: In many countries, judges are part of a civil-service career track: you go to law school, enter the judiciary young, and work your way up until mandatory retirement. That means the most senior—and most powerful—judges tend to be the oldest.

Viktor Orbán exploited that structure by abruptly lowering Hungary’s judicial retirement age from 70 to 62, effective immediately. Overnight, he removed the top 15 percent of the judiciary’s leadership. At first, people asked, what’s wrong with that? Retirement ages change all the time. But the point was that Orbán suddenly had all those top positions to fill—and he filled them with loyalists. That’s how he captured the courts.

The idea spread. The following year, officials from Hungary advised Egypt’s Mohamed Morsi on the same tactic, and later Poland adopted a similar approach. One “reform” migrated across countries, adapted to different systems, and repeatedly used to undermine judicial independence.

That’s the “migration of an unconstitutional idea.” And when you combine it with a civil-service judiciary, you get the “Frankenstate” effect: a legal transplant that seems normal in isolation but becomes dangerous in context.

Pam Karlan: For more than a century, the United States saw itself as an exporter of democratic ideas—helping draft Japan’s constitution after World War II, advising constitution-writing around the world. But now, in some ways, we seem to be importing ideas about how to undermine democracy through law. Can you talk about that shift?

Kim Scheppele: Yes. When Project 2025 was published in early 2024, I read it and my first reaction was, “This sounds like Viktor Orbán.” There were striking similarities.

Orbán had publicly supported Trump and created an English-language think tank, the Danube Institute, that attracted figures from Trump-world. A journalist later discovered a formal partnership between the Danube Institute and the Heritage Foundation, so the parallels weren’t accidental.

One key example is fiscal strategy. When Orbán took power in 2010, he studied the national budget and decided to destabilize the opposition by cutting funding immediately—day one, no warning. He used fiscal pressure to weaken institutions and critics.

We saw similar ideas here: abrupt cuts to science funding, USAID, and other programs—some of which supported democracy-promotion organizations in the U.S. and abroad. Orbán also dismantled civil-service protections and carried out mass firings to purge bureaucrats he didn’t trust. These tactics are part of a shared playbook.

It took Orbán a little bit longer than it took Trump. Both Orbán and Trump had been in power once before, and when they came back the second time, after they were voted out of office, they were ready.

Pam Karlan: It’s not just that Trump dares people to sue him—he also sues others. There’s an aggressive campaign against the media and a series of investigations that seem designed to keep opponents on the defensive. Can you talk about that strategy?

Kim Scheppele: Exactly. Orbán did this too. Suing the media or political opponents—even on flimsy grounds—is a way to hit people financially. Lawsuits are expensive, and unless someone has deep pockets or strong legal backing, the pressure to settle or withdraw is enormous. Many of Orbán’s suits were legally weak and would likely have failed if fully litigated, but most people backed down anyway. It’s a powerful deterrent.

Trump understood this long before he became president. He was famous for stiffing contractors and daring them to sue, using litigation to grind people down. He’s continued that strategy—throwing sand in the gears of the legal system, delaying proceedings, and using the courts as a tool. Only one of his four felony cases went to trial, and it was arguably the least damaging in terms of the evidence that came out.

He also knows how to turn the legal system against opponents through investigations and prosecutions. Orbán pioneered this as well. A Stanford PhD student has built a database of Hungarian opposition candidates and the companies they worked for, showing that those companies were statistically more likely to face tax audits and criminal investigations. What had long been anecdotal is now empirically documented.

And that pattern—using lawsuits and investigations to intimidate critics and weaken opposition—is something we’re now seeing here, too.

Pam Karlan: That’s what the law firm executive orders seemed to do—targeting firms whose lawyers had prosecuted January 6 cases, or firms like Susman Godfrey for representing Dominion against Fox. Can you talk about that tactic?

The point of targeting law firms is to go after their livelihoods. If a firm is singled out by the government, clients worry their lawyers could be disqualified mid-case or otherwise sidelined, so they may flee. Even the threat creates enormous pressure.

There’s a paradox here, especially for clients. On the one hand, you might prefer a lawyer who stands up to the government rather than one who capitulates. On the other hand, you worry: what if the government refuses to deal with your lawyer, or they can’t effectively represent you in court? That uncertainty itself is the weapon.

After 9/11, when the torture memos came out, Big Law was deeply involved in pro bono litigation challenging wrongful detentions. Firms across the ideological spectrum wanted to show they stood for the rule of law. Today, that’s not what we’re seeing. Hundreds of cases are being brought, but they’re largely handled by NGOs, boutique firms, and overstretched litigators. Big Law has mostly stepped back.

Part of that is structural. Firms that rely on deal work—mergers, regulatory approvals, SEC matters—depend on good relationships with the government, so they’re more vulnerable to pressure. Litigation-focused firms are more accustomed to confronting the state.

In reality, the government can’t keep lawyers out of federal buildings. But no client wants to be the test case. And that’s how the chilling effect works: people pull back not because the law clearly requires it, but because the risks feel too high.

I think Americans are surprised by how quickly this has unfolded—slowly at first, and then all at once.

Pam Karlan: Your tentative title of your book is Destroying (and Restoring) Democracy through Law. Are there lessons about how to restore democracy through law that you’d like to leave our listeners with?

Kim Scheppele: I started working on these issues in Hungary and Poland, alongside teams focused on the European Union. In both countries, once the judiciaries were captured, domestic law ran out. So we turned to EU law and built legal tools at the supranational level that could constrain those governments.

In December 2022, the EU finally cut significant funding to Hungary and Poland. In Poland, that pressure helped lead to a change in government in the next election. In Hungary, Orbán now faces his first serious challenger in years.

The lesson is that if you can leverage law at another level to counter the level autocrats attack—usually national constitutional law—you may still have leverage. In the U.S., that suggests leaning into federalism. States, especially blue states, can defend in federal court, but they can also use state constitutional law to push back and to fill gaps when the federal government retreats.

We’ve already seen interstate compacts on issues like vaccines, which don’t require much funding. But wealthier states could go further—using their resources to preserve expertise, sustain programs, and keep institutions functioning when federal capacity erodes.

That’s where I see the next frontier: using state constitutions and state resources as a backstop. There is still a lot for lawyers to do, and a lot of legal architecture that can be mobilized to defend democratic governance.