How Democracies Collapse from Within

Kim Scheppele: Unfortunately, Hungary has really led the way toward a certain new kind of democratic collapse, and unfortunately a lot of other countries, now the U.S. included, are following in their footsteps. So I rode the escalator up and now I’m riding the escalator down.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.

One of my absolute favorite quotations of all time is from a C.S. Lewis sermon that he gave right at the beginning of World War II, called “Learning in Wartime.” One of the lines in there really captures what we’re going to be talking about today with our guest, which is that we can’t study the future, and yet we need something to set against the present to remind us that the basic assumptions have been quite different in different times, and that much of what seems certain to the uneducated is merely temporary fashion.

And here’s the part that grabs me every time: “A man who’s lived in many places is not likely to be deceived by the local errors of his native village. The scholar has lived in many times and is therefore, in some degree, immune from the great cataract of nonsense that pours from the press and the microphones of his own age.”

And today’s guest, Kim Scheppele, is that scholar who has lived in many places and who is definitely not fooled by the cataract of nonsense that we seem to be experiencing these days. Kim is the Lawrence S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs. She’s visiting Stanford Law School this fall where she’s been teaching the Law and Society seminar. One of the things that’s most distinctive about Kim is how much time she’s spent studying constitutions and new constitutions around the world. In particular, she has spent a lot of time in Hungary and in Russia studying their new constitutional courts.

And in the last 15 years or so, she’s been documenting the attacks on constitutional democracy that have occurred throughout the world. Her new book, which will be coming out sometime soon, but for reasons that will get into in a moment, will be taking a little longer than one might’ve expected originally, is called Destroying and Restoring Democracy Through Law, and it’s forthcoming from Harvard University Press.

So thanks so much, Kim, for taking time to talk with us today.

Kim Scheppele: It’s always lovely to get a chance to talk to you, and I hadn’t heard that quote before. That’s great. Thank you.

Pam Karlan: It is. It’s an amazing sermon that he gives about how the scholar needs to focus on the things that are of scholarly expertise and students need to keep learning, even in times when what’s going on in the world around them seems really quite pressing. And more than perhaps anyone in the entire academy, you’ve been doing comparative democracy and comparative democratic failure for 15 years now. And when you started studying Hungary, did you think it was going to have a lot of bearing on the United States, or was it just a totally separate interest?

Kim Scheppele: I, like most 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 which were heady optimism. So I didn’t go to study the decline of democracy. 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, right? That was the line that we all told ourselves back in those days.

It was, as your Stanford colleague, Frank Fukuyama says, “the end of history.” Anyone who was going to be a democrat and had a chance would do that and stay there. 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. So I rode the escalator up and now I’m riding the escalator down.

Pam Karlan: Every time I hear about escalators these days, I think about the accident.

Kim Scheppele: The Trump references—not accident.

Pam Karlan: That was not an accident, that was not an … that was not an accident at all.

So there was this period right after the fall of the Berlin Wall where there were all of these emerging democracies in the former Soviet Union and the former Eastern Bloc and the like. And some of those have taken root, but a lot of them have failed. What caused the failure?

Kim Scheppele: Yes, so actually 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. So 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, that have fallen victim to autocratic capture–none of the populations of those countries really wanted to give up democracy and then they didn’t think they were when they elected the people who led them into that kind of abyss. 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, usually 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. So it’s not a demand-side thing so much as it’s a supply-side thing.

Pam Karlan: Yes, and one question I had, both when you gave a talk at the law school—which was an absolutely stunning, magnificent talk about this—was: have these people 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? Was this always under the surface and it just all erupted at once or is there something about the current time that has produced this supply?

Kim Scheppele: Yes, so 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 even back to, say, McCarthyism—it just happened he was in Congress and not in the White House. Or if you think about what Goldwater might have done had he been elected.

Pam Karlan: Or think of Huey Long.

Kim Scheppele: Or Huey Long, another populist, popular leader. Think about what Nixon would’ve done left to his own devices, right? We’ve had a lot of near misses and the thing is that the checks actually worked. And so the question is: if somebody wants to be an autocrat and they understood that in the past autocrats have been prevented from doing what they wanted to do because the checks worked, the question is how to dismantle the checks and how to do it. It might take a long time to dismantle the checks, but how to dismantle the checks so that people don’t understand that checks are no longer there. And then sweep in on an election victory and get rid of the rest of the checks. And this is very much what we saw in these other places. It’s very much what we’re seeing here.

Pam Karlan: Yes, if you’d asked me in say, 2015, have the checks in the American system been dismantled? Do you think if I’d asked you that in 2015, you would’ve said, “we’re in danger of our checks disappearing,” or … Because another literary illusion that came to me while I was thinking about how to talk with you, is the discussion at the bar in The Sun Also Rises, where Bill asks Mike Campbell, “How did you go bankrupt?” And Mike says something like, “First, slowly and then all at once.” And I’m wondering, like in 2015, when you looked at the American system, did you think, “whoah, our checks are about to bounce?”

Kim Scheppele: Yes. So I’ve been nervous for quite some time, and the reason why is that if you think about how checks and balances are supposed to work in the U.S. system, they’re supposed to work because of institutional loyalties. So the senators are supposed to defend the Senate. The representatives are supposed to defend the House. The judiciary is supposed to defend the prerogatives of the judiciary. The state governors of their states, and so on. That worked for a while. I remember even in my own lifetime, members of Congress whose highest ambition was to stay in Congress and get seniority, but then there was a point when many of the members of Congress could think of nothing better than perhaps a White House bid.

It was also the case that you started getting increasing polarization. So rather than being loyal to institutions, you started finding that everybody was playing on the red team or the blue team. Which is to say that when there was party loyalty that ran across institutions, you’d see the institution of Congress, for example, behaving very differently when somebody of their own party was in the White House than when somebody from the opposition party was in the White House.

It took a little bit longer to get to governors behaving the same way. But if you have a system of checks and balances designed that every power protects itself and then you get the shift in the loyalties, so that it’s one party against another, then you get these fatal party loyalties that cross institutions and the checks have largely disappeared.

Now, that’s not new. One person that I think really … when you had the introduction about looking abroad to see at home … the person who learned that the best was actually Robert Jackson. If you think about his Youngstown concurrence, which has been the framework for thinking about separation of powers at federal level ever since that case was decided, there’s a line in that concurrence where he says that the powers of the president are always enlarged when his party is reflected in majorities in the Congress. And that was, of course, the state of things for nearly 30 years, at the time of Youngstown, right? He already called out that danger.

So this is not a new observation. But the interesting thing about Robert Jackson when you say, “is this an accident waiting to happen?” that Jackson was the original unitary executive guy, so…

Pam Karlan: Well, before, he…

Kim Scheppele: Before the war, right? So he’s Roosevelt’s lawyer. He’s Roosevelt’s leading advocate for the court-packing plan. Then when he gets into the solicitor general and attorney general’s position, he’s writing these executive orders and opinions for Roosevelt that basically are doing all kinds of dances around the neutrality acts that Congress is passing, trying to prevent the United States from entering the European war, which everyone could see was coming.

And so Jackson is constantly finding ways to say: how dare the courts get in the way of the president? How dare the Congress tell the president that he may not prepare for a war? 

And then, after the war, he writes the Youngtown concurrence. And so what happened in the meantime was that he went off, at President Truman’s request, taking, by the way, a leave of absence without leave, to go off and become the chief prosecutor at the Nuremberg Trials. He was in charge of prosecuting the charge of conspiracy, the conspiracy that led to the party taking over the government in Nazi Germany. And as he traced out exactly how … German democracy was considered reasonably robust until the moment it wasn’t either. The Weimar constitution, the interwar constitution in Germany, was considered the model constitution after the American one, and yet that system collapsed really quickly. And it collapsed because the party substituted for the other checks on power, and that was exactly what he wound up arguing in Nuremberg. 

He comes back and the executive order—you’ll know this of course—the executive order at issue in the Youngstown case, through which Truman seizes the steel mills, was a copy and paste of an order that Jackson had written for Roosevelt seizing this aircraft manufacturing plant in California. In fact, it was so similar that Jackson’s colleagues are saying, “You really ought to recuse. You can’t judge your own handy work.” And then he finds that unconstitutional.

And I think exactly what happened was he got out of it. He saw how it is that checks and balances can be disappeared by party loyalty. And that was why he ruled the way he did.

Pam Karlan: Do you think this also goes back to my timing question to you a moment ago, which is, we are now so far past the era of the 1930s, that most people living today have not assimilated that message personally.

Kim Scheppele: Exactly.

Pam Karlan: And we’re seeing a number of things that are repeats…

Kim Scheppele: Exactly.

Pam Karlan: … of things we’d seen before.

Kim Scheppele: Yes. Everybody I know who spent substantial time living outside the United States, especially in a country that has seen its democracy fumble or fail, everybody knew where we were going here. And yet almost every American who hasn’t really spent time living in a place like that, is still a little bit engaged in wishful thinking about exactly which institutions are going to save us, how much and when.

And so I’m not nearly as optimistic as many of my American colleagues and, not because I wanna be a pessimist, I have as much at stake as the rest of us. This is my country too, right? So I don’t wanna see it fail. But I do think that we have to be able to take lessons from how other democracies have crumbled.

And part of the reason why you’re seeing this happening in so many places at once is that they’re all borrowing the same tactics from each other.

Pam Karlan: Yes, you have two chapters in the forthcoming book, obviously the names of the chapters may change in some ways, but you have one that’s about the “Frankenstate” and one that’s called the “Migration of Unconstitutional Ideas.” And I thought maybe you might unpack those two notions for our listeners.

Kim Scheppele: So let me start with the migration of unconstitutional ideas. One of the things you’re finding is that every autocrat wants to pretend to be a democrat, right? So this is the first thing. Every single one of these leaders who are taking their countries into autocracy were elected in free and fair elections the first time. I’ve actually gone back for all the autocrats we now know and looked at what the election monitors said during the election that brought them to power. And every single one of these elections was pretty clean, right? So you can’t say it was a problem with the election. So then what happens?

What happens is that these autocrats come to power and what they have to do is, again, the autocratic lane is removing checks on the executive. So how do they do that? They look to other countries and they say “is there anything happening over there that we might usefully borrow that might be constitutional in their system, might pass for constitutional in ours, but would tilt us into a situation which should be unconstitutional in principle while still borrowing the features of good democracies elsewhere? And that’s where I get to what I call the Frankenstate. So again, since you’re big on literary metaphors today, this one’s mine, right? So Dr. Frankenstein creates this monster in Mary Shelley’s novel. And how does he do it, right? He picks up all these corpses, he goes to graveyards, and digs them up and goes to morgues and grabs a few more and attaches the head of one to the torso of another, to the arms and legs of third and fourth and seventh bodies. And all of these body parts were normal when attached to the bodies they came with. But when reattached in these new combinations creates the monster. And this is what is happening with laws, right?

Pam Karlan: Yes. One example that you gave in the draft of the book that struck me, because it is so “Frankenstate-ish” is that in most American judicial systems, in most of the state judiciaries, whether the judge is appointed for life or is elected, there’s a mandatory retirement age.

And in the United States, we have good arguments for why that’s a great thing to have. It ensures in the states in the Northeast that have lifetime appointments, that people don’t stay on too long. It allows for new blood. It deals with the problems of judicial incompetence without having to point a finger at people. It all makes perfect sense.

Kim Scheppele: And strategic retirements, I might add.

Pam Karlan: Yeah. And, but then you talk about how Viktor Orbán used this piece of what’s totally normal in the United States, and I thought it was just a fascinating example.

Kim Scheppele: So in most countries in the world, there’s not the system we have in the U.S. of an elected judiciary in many states or appointed judiciary, but they actually have a civil service judiciary.

So you go to law school, you go to the judge’s track, you come out as a baby judge, you get promoted through the ranks until you hit the mandatory retirement age. So that means that all the people who were in the leadership positions, who have worked their way up, the system also tend to be the oldest.

And so what Viktor Orbán did was overnight, lowered the judicial retirement age from 70 to 62, effective immediately, and suddenly lopped off the top senior-most 15% of the judiciary. And people are saying “gee, what’s wrong with that?” Because of course, in many systems they’d raised judicial retirement ages and no one thought that was a problem.

So then you had to come to the question of, well, if the retirement age is flexible, effective with sitting judges, what’s wrong with lowering it? So it took the European Union a while to figure it out and they wound up with some strange argument about age discrimination, which missed the point, because the whole point in doing it was that suddenly Orbán had all those leadership positions in the judiciary to fill at once, and the next thing you knew, the judiciary was captured. 

Because you start at the top and then they can cram it down to the lower judges, and this was how he captured the judiciary. It was such a good idea, that the next year, Mohammed Morsey in Egypt—this all happened in 2012—so Mohammed Morsey, the Muslim Brotherhood in Egypt, thinks this is a grand idea, so people from the Justice Ministry in Hungary go off to Egypt, explain to them how they did it, and the next thing you know, it’s done in Egypt.

Now, what’s interesting about that, I think I mentioned this when we spoke, is that this is when Viktor Orbán is “Mr. Islamophobe,” right, objecting to Muslim migration to Europe. So what’s he doing working with the Muslim Brotherhood head of Egypt to figure out how to capture their judiciary? Turns out Morsey was then deposed before the whole reform went through, but the idea was such a good one, that by the time we got an autocratic government, or government of autocratic aspirations in Poland, they did the exact same thing.

So you get this one idea and it just moves around, and it had followed a whole bunch of countries raising the retirement age, mostly to deal with social security and pension issues. But yes, so there’s an example of a migration of an unconstitutional idea, but it’s put together with a civil service judiciary, and that’s what gives you the Frankenstate quality of it.

Pam Karlan: Yes, and speaking of the importation of ideas for more than a century, the United States thought of itself as the exporter of democratic ideas. Writing the Constitution of Japan after World War II, or having the voice of democracy, having all sorts of people going and writing constitutions in other countries and but in some sense, we’re becoming an importer now of these ideas of destroying democracy through law, and I wonder if you could talk a little bit about that?

Kim Scheppele: Yes. So when Project 2025 was published in, what was it, February, 2024, right? I sat down and dutifully read it and my first thought was, “oh my goodness. It sounds like Viktor Orbán.” So I’m just talking to…

Pam Karlan: Translated from the original Hungarian.

Kim Scheppele: Translated from the original Hungarian. There were so many similarities. I thought, geez, this is really interesting. And so I mentioned this to journalists knowing that, of course, Orbán had defended Trump. That Orbán had an English language think tank he’d created called the Danube Institute, which some people well known in Trump circles had come and hung out for a while.

And so I thought “geez, this is really interesting.” And so one of the journalists that I talked to went and dug around in Hungary and discovered that there was a formal agreement between this Danube Institute, Orbán’s English language think tank, and the Heritage Foundation, and so a lot of these similarities were by no means accidental.

So let me just give you a couple of examples. The biggest one, the most influential and consequential one, is that when Orbán came to power in 2010, the thing that he did right off the bat, was he had studied the national budget in detail and asked himself, “How do I put the opposition to what I’m about to do off balance?” He said, by cutting all their funds immediately. Day one, no warning, everything will go. And in fact, pressuring everybody through fiscal measures. And so this is exactly, of course, what happened here, right? So this is where you get all the cuts overnight to science grants, overnight to USAID, all of the foreign influence, which by the way, USAID was funding not just great works abroad, but the democracy-promotion set of organizations here in the U.S. also, because they would’ve recognized what they saw. They were put out of business overnight and again, on and on through the federal budget. Also mass firings. Orbán had lifted the civil service law, mass fired his way through the parts of the bureaucracy that he couldn’t trust.

Pam Karlan: Yes, and that’s one of the one of the most striking things is, there’s the mass firing of, just getting rid of most of the Department of Education. But then you’re seeing all of these firings of civil servants who are receiving a termination notice that simply says, “According to Article II…”

Kim Scheppele: Right exactly. So here’s the other piece. It took Orbán a little bit longer than it took Trump. So 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.

Now Trump had an advantage in term one, which is that he had outsourced one thing that was his lasting contribution to the destruction of democracy in the United States, and that was outsourced judicial appointments. And Trump had, of course, managed a rather unlikely three judicial appointments in one term, two of them under, shall we say, suspicious circumstances.

And that added to judges who had already been put on the court in order to … I think the dominant strand of Republican, or one of the things that Republican presidents over decades had been looking for were judges who were going to increase executive power. Now, the early judges weren’t picked to increase executive power for a Trump-like figure.

But just again, unitary executive, getting rid of the lively and robust executive that the U.S. was supposed to have, getting rid of all the checks on that office. And so what happened was that the Supreme Court was already primed to really lean into the expansion of executive power from Trump’s first term.

Orbán had to pack the constitutional court once he got into office, and it took him three and a half years, actually, before he packed the court and turned it into a rubber stamp. So Trump started off a little ahead of the pack here. Again, if he thought the Supreme Court was going to endorse, maybe not everything he did, but everything he did that was going to increase executive power, diminish the Congress, and even diminish the role of the lower courts, for example—All of that was, going to be something that he thought he could count on the Supreme Court to endorse. And so, how do you test that? You break things first and ask permission later, right? So he just starts doing all this stuff that was clearly in violation of statutes Congress had passed or interpretations of the Constitution we’d taken for granted and then dares everybody to sue him.

And the way that you do that is you just say, “Why are you fired? Article II,” right? That’s gonna be the whole argument is gonna be executive power. And I think what we’ve seen so far, we’ve had, what is it, 29 cases?

Pam Karlan: Yes. That have gone up to the Supreme Court. There are several hundred cases below where he hasn’t appealed. And I think that’s … this goes back to something you were saying a moment ago: It’s interesting to see which ones he takes up to the Supreme Court and, to some extent he seems to be building up momentum by taking the unitary executive cases up, as opposed to, for example, he hasn’t taken up, most notably the four executive orders that are targeting law firms. He hasn’t gone to the Supreme Court on that.

Kim Scheppele: Yes, but he already won, okay? He wants …  but he wants court cases, but Big Law is all out, which is challenging.

Pam Karlan: And that leads to the second thing I wanted to come back to, which is you talked about: he dares people to sue him. It’s not just he dares people to sue him, but he’s suing other people. There’s a very aggressive attack on the news media, in particular, but there’s also these semi-bogus investigations that are designed to put other people on their back feet.

Kim Scheppele: Exactly. Orbán did exactly this, too. Now, the reason for suing the news media, or suing any of your opponents for made up stuff, is that again, if you take the basic observation that the way you’re gonna go after everybody is by hitting their finances, then what suing somebody does is it bankrupts them. Unless they have deep pockets or lawyer friends or something of that kind, right? But it really is a big hit to somebody’s bottom line, and it’s always cheaper to settle or go along than to go all the way through with a lawsuit. Orbán did this also, and in fact some of the lawsuits were just completely preposterous. You knew that if the person fought their way through to an actual resolution of the case, they would win. But most people settled back down and got out of politics. Some will fight, but most don’t. So that was one of the lessons that  Orbán taught everybody. And then, I think you’re absolutely right that, if you remember, Trump was doing this before he became president, right?

He basically was famous for “Sue me,” stiffing everybody and then making them sue. But throwing sand in the gears—he did that all through his four felony indictments. Only one of them came to trial and it was the least harmful one in terms of what the evidence was that came out about what he’d been up to.

So he knows how to play the judicial system and he knows how to use the judicial system against his opponents, but again…

Pam Karlan: … and you’re seeing all of these prosecutions now that are really…

Kim Scheppele: Oh, and the fake prosecution.

Pam Karlan: Quite extraordinary.

Kim Scheppele: Yeah. So what Orbán did, in fact … there’s a wonderful PhD student at Stanford, if I could put in a plug, she’s interviewing for jobs this spring. She’s Hungarian, and she put together this amazing database in Hungary of all the people who had stood for office in opposition parties since Orbán came to power and the companies they worked for. And what she could show was that there was a statistically significant likelihood that the companies that these candidates worked for were to be subject to tax audits and criminal investigations.

So, now it is not just anecdata …  we knew that from anecdata, but she’s now shown it’s big effect. And so that’s what’s happening here.

Pam Karlan: That’s certainly what the law firm executive orders were. They went after law firms because people had been involved in prosecuting the January 6th insurrection. Or they went after Sussman Godfrey because they had sued Dominion, they sued on behalf of Dominion against Fox.

Kim Scheppele: But again, when they went after them, what does it do? It goes after their livelihoods. What client is gonna want that name on a brief or on a complaint that you know, when they might get disqualified in the middle of the case, and so it was causing … the worry was that it was gonna cause clients to flee. And again…

Pam Karlan: Yeah and it does have this, it has a … especially with lawyers, that has this kind of weird perverse or paradoxical consequence, which is, if you were hiring a lawyer, would you really want to hire a lawyer who kowtows to the government the way that the settling firms did? On the other hand, you’re, you’ll be worried that what if the government won’t meet with your lawyer or your lawyer can’t get into the courthouse?

Kim Scheppele: Exactly. So that’s why all of big law …  I was involved after 9/11 when the torture memo came out and there was just a huge amount of litigation, as you’ll remember on behalf of lots of people who were wrongfully detained and so on.

I was involved in coordinating a lot of the lawsuits and big law was all in. All of their pro bono work, across the board, it was liberal, conservative firms all wanted to show that they were against torture and in favor of the U.S. holding its head up high again. Big Law is completely out of these cases. There are now 550 or something? A huge number of cases thathave been brought. It’s all NGOs, small boutique law firms, and people who were stretched thin, trying to bring…

Pam Karlan: Or firms that just litigate and don’t have… one of the things that a lot of observers have suggested, is that the firms that settled were all firms that primarily get their revenue through deals.

Kim Scheppele: Yes.

Pam Karlan: And the firms that didn’t settle are firms that are primarily litigation-oriented because the deal firms depend on the government to approve the mergers of their clients or avoid problems with the SEC or the like. And the litigation firms are used to going up against the government.

Kim Scheppele: Although nobody ever tested whether the government could in fact keep lawyers out of federal buildings …

Pam Karlan: Oh, of course they can’t. Of course they can’t keep lawyers out of federal buildings… There are some things I’m pretty sure about and that’s one of them. I’m pretty sure that lawyers are entitled to go into federal buildings to meet…

Kim Scheppele: but who wants to be the client…

Pam Karlan: I know.

Kim Scheppele: Do you want your lawyer to challenge the case, but again, this is … I think Americans are surprised at how quickly things have happened.

Pam Karlan: Yeah, it’s like when Mike Campbell goes bankrupt in The Sun Also Rises. It’s like very, slowly and then all at once.

Kim Scheppele: All at once.

Pam Karlan: The last question that we really have time for is to ask you: The title of the book, the tentative title of the book, is Destroying, and then you have in parentheses and Restoring Democracy through Law, and I wonder, are there some lessons about how to restore democracy through law that you’d like to leave our listeners with?

Kim Scheppele: Yes, so I started working on this stuff with Hungary and with Poland and the European Union. And so teams of us who were working on these problems, once we ran out of law in these countries, because the judiciaries were captured in both places. What we did was we went to EU law and we had to make the law at EU level so that it would come back around and bite Hungary and Poland, which had both fallen into autocracy. And what the EU finally did, December 2022, was to cut all the funds, huge amounts of funds to Hungary and Poland. And in the next election in Poland, the government changed hands and we’re about to see what’s going to happen in Hungary. Orbán has his first serious challenger since he came to power.

So, if you can leverage law at another level to come back and hit the level that autocrats attack, which is national constitutional law, then maybe there’s some hope. And so I’m thinking in the U.S. now, maybe we can lean into federalism. Maybe we could lean into the blue states, actually, not just defending in federal courts, all of these cases that they brought very actively, they’re the most active litigators. But to think about how to use state constitutional law to push back against federal constitutional law, either by holding the line so that the entire government doesn’t collapse under Trump, but also by bringing resources to bear that can pick up some of the work that the federal government is dropping.

So we’ve already seen this kind of northeast and west coast compacts to give advice on vaccines. That’s easy, it doesn’t require money. But maybe we can actually see, some blue states, which are, by the way, richer on balance than red states, trying to figure out how to use their resources to pick up some of the tasks the federal government used to do, so we don’t lose the expertise and we don’t lose the know how, and we don’t lose the people in the meantime. So that’s where I’m thinking that we might think about heading next, is into tapping the resources that state governments and state constitutions have to bring us, and therefore there’s still stuff for lawyers to do.

Pam Karlan: There will always be stuff for lawyers to do. It’s last literary illusion, like the folk tale about the mythical city of Chelm, where there’s a guy sitting on the side of the street and somebody says to him, “So what’s your job?” And he goes, “Waiting for the Messiah.” And somebody says, “And how’s that job going?” He goes, “The pay is not great, but the work is steady.”  And I think one of the lessons I take away from this is the work of trying to protect the democracy you have, and restore the democracy you have, is steady work. It’s not something that will ever actually be done.

So I wanna thank…

Kim Scheppele: [inintelligible]

Pam Karlan: Yes, no, never surrender.

Kim Scheppele: Exactly.

Pam Karlan: So thanks to our guest, Kim Scheppele. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.