Populist Nightmares of Now

Over the past four years I’ve been paying a little more attention to Twitter than I should. Or maybe the right amount, I’m not sure. But at any rate I’ve seen several individuals, and in my own following, most obviously Tom Nichols (@radiofreetom on Twitter), author of The Death of Expertise (The Death of Expertise — Wikipedia), talk from time to time at various lengths about this idea — the death of expertise.

The premise is pretty simple — the world, and more so the United States, has become an environment wherein there exists a hostility towards experts and their expert opinion.

You see this everywhere — anti-maskers, anti-vaxxers, etc — but as an attorney, I had not really considered it within the context of my own career. By and large, my fellow lawyers have “stayed in their lane,” or at least that was my experience. I remember Ted Cruz pre-Donald Trump had opinions I did not agree with, but they were expressed through legal expertise and, while skirting the line, never going over the line into falsehood, outright bullshit (if you’ll allow me the phrase). I had disagreements with attorneys over political ideology, but rarely over law, or rather, rarely over extremely settled or cleared law.

As an example, we might argue about what constitutes “intoxication” within the context of losing the normal use of mental and physical faculties, but not within the context of the statutorily clear .08 blood alcohol level. That was simply established. Most of the legal arguments I’ve been involved in with regard to the Courts have been fairly clear cut too, with questions connected either to facts (testimony, etc.) or to obscure arguments that we already had a good idea of what the ruling would be (even if we were making them). But perhaps most importantly for this commentary, my general experience in ten years of practice has been that the “legal stuff” has been left to the lawyers. That is to say, when I began my career as an attorney in 2008, I rarely saw or heard a layperson try to explain the law to anyone. The caveat of course is political discourse.

For some reason (we know the reason) the question of abortion has long since been a talking point for both Democrats and Republicans. But as an attorney, I’ve never given it much though. Roe v. Wade exists, ergo the question of a fundamental right has been answered. Indeed, despite the political presentations of legal cases that “contest” Roe v. Wade, the actual content of most of those cases is not “Is there a fundamental right to an abortion?” but rather, “To what degree can that fundamental right be regulated?”

Still, the demagoguery persists.

But 12 years ago, when I was a baby attorney, you could count on politics, by and large, to defer to legal experts in most situations, and to, when the answer to a legal question was clear, grudgingly admit it.

What I’ve seen more and more under the Trump administration has been an aggressive misunderstanding and proclaiming of legal concepts by the general citizenry. The decrying of “I know my rights!” has become overwhelming on social media, and not surprisingly, politicians have weighed in heavily on the side of populism. That is to say, as the general citizenry has proclaimed legal misconceptions, the politicians with the greatest ability to correct those misconceptions have either side-stepped the issue, or worse, and more prevalent as of late, adopted the issue.

Enter the Texas Attorney General and his ill-conceived, populist, and unfortunately leggy filing with the United States Supreme Court. (Update: As expected the filing was rejected.)

Before I go on, a brief word about populism. Populism is the worst form of democracy. Period. Because it completely abandons expertise, bureaucracy, and institutional stability in favor of simple popularity. Politicians in a populist democracy are only interested in their political capital which, if we look at today’s society, would be the equivalent of Likes on Facebook, Retweets and Quotes on Twitter, and actual face time on news stations. They ask, “What do people want?” Whatever that answer is, the politician will then adopt.

You can see the danger here.

Taken to the extreme, here is an example — imagine a populist criminal system, one in which the State and the Defendant are simply trying to outmaneuver each other for the jury’s verdict. There are no rules to follow, no definitions, no way for any outside neutral arbitrator to establish order. No Judge to prevent one side from talking over the other (see the first presidential “debate” between Joe Biden and Donald Trump), nor a Judge to determine if Aunt Sally’s testimony that she heard Betty talking to Fred about what Betty heard Allison say last week should be allowed in as evidence or not.

Which essentially brings us back to the Texas filing against Georgia, Michigan, Pennsylvania, and Wisconsin.

I’m not going to list all the ways this filing should fail (indeed should not even be taken up by the Court). I’m not going to because that’s really not the point of this commentary. (And as updated above, has been rejected and is now moot.)

I am going to say this — every Attorney General who joined in this filing, every amicus brief supporting Ken Paxton (Texas Attorney General) that has been filed, every actual attorney who has joined or leant their name to this cause KNOW that it should fail. They KNOW that it should not even be taken up. Which means that our country, is sliding closer to a populist form of democracy.

When you know the rule, and you willfully attempt to go over or around or under it, because X number of people want you to, that is the definition of populism in a nutshell. The fact that so MANY people are willing to do this right now is troubling.

But this also relates back to the death of expertise, which is really the ultimate evil in this scenario. As the population, the general citizenry, begin to believe they know their rights better than attorneys in general, they rely less and less upon what people in positions of authority tell them, and more and more on whomever is saying what they want to hear. They don’t trust the experts. They don’t trust the attorneys who are staring at disbelief at the Texas filings. They trust Ted Cruz, who proudly proclaims that he’ll argue the case if the Supreme Court takes it up.

This is a zero risk offer, by the way, because Ted knows, as I know, as all attorneys in the United States SHOULD know, that he’ll never have to make good on his offer to argue the case, because it won’t get to oral arguments. It will either be denied outright, or it’ll be taken up and then decided without oral arguments. At least, that’s what should happen.

Luckily for all of us, the Constitution was created in such a way as to shield the Judiciary (the Courts) from populism. The Supreme Court Justices do not answer to the general citizenry in the same manner as elected officials…because they are not elected. They are nominated and appointed and thus shielded from populism and sheltered from politicization. So long as that holds, the United States should be…okay. Well…not okay, but fixable, not beyond all hope, however you want to put it.

But finding us here, in this moment, with more than half the Republicans in the House of Representatives espousing populist narratives over the ideals that created this nation, this is my populist nightmare.

There is nothing I want more in this life right now, than to wake up.