By Michael Dorf
This week, the American Constitution Society posted an open letter from a group of constitutional law scholars (including me) to Donald Trump, cataloguing the ways in which his campaign and post-election statements and announced plans threaten cherished aspects of our constitutional democracy. Although addressed to Trump and nominally urging him to change his ways, it is fair to say that Trump is not the intended audience. As Stanford law professor Pam Karlan, one of the signatories, said: "We are under no illusions that President-elect Trump … is going to bother to read a letter from law professors.” The point of the letter is to influence public opinion and people in positions of power--especially in Congress--to take steps to resist what might be the worst actions of a Trump administration.
Dahlia Lithwick and David Cohen wrote in Wednesday's NY Times that the initial task of resisting Trump has fallen to the likes of law professors because the Democratic Party--the obvious locus of resistance--appears to be AWOL. I'm not sure how fair a characterization that is. Wednesday's Times also carried a story about how Democratic elected state officials are gearing up to resist Trump by filing lawsuits and using state law to patch holes that Trump opens in federal law.
Lithwick and Cohen chide Democratic leaders at the national level for failing to follow the GOP playbook from the 2000 election by throwing whatever crazy arguments at the wall that they can in the hope that one of them sticks, but the comparison is inapt in a crucial respect. In 2000, Republicans were playing defense, because the initial count in Florida had Bush ahead and the Gore campaign was trying to reverse that result. Moreover, the Republicans knew ex ante that they had a decent chance of winning, because the Republican Florida governor was their candidate's brother, the SCOTUS had a majority of Republicans, and a majority of state delegations in the House--where a contested election would be decided--were Republican. With all of this institutional support, the Bush team expected to win. Although their ultimately winning argument in the SCOTUS was new, their ex ante position was strong. Gore took his case to the Florida courts because he thought, correctly, that he had a shot at winning there. Bush took his appeal to the SCOTUS--and would have gone from there to the House--because he thought, correctly, that he could win there.
By contrast, there is very little chance that enough of the GOP electors will heed the call of latter-day Hamiltonians in order to send the election into the House (where Republican delegations would vote for Trump anyway, given fear of primary challenges), much less to elect someone other than Trump. Nor is there any chance that the courts will void the election result. The notion that the national Democrats have brought a bunch of unarmed law professors to a gun fight is true, but only because they don't have any usable knives, much less guns. Put differently, Lithwick and Cohen invoke the stereotype that Democrats don't fight as fiercely as Republicans, but they don't offer any persuasive evidence for it in this case, even though the stereotype does have a basis in fact.
Having said that, I agree with Lithwick and Cohen that the arguments of law professors--as opposed to more substantial power plays by people with real power--are not an especially effective weapon against would-be tyrants like Trump. After all, the right has spent decades trying to delegitimize the authority of experts in general and academics in particular. Thus, the fact that a law professor--or climate scientist--says something is taken by the sorts of people likely to support Trump as evidence that it's wrong.
That fact, however, does not render public engagement by academics pointless. Amicus briefs are a case in point. Even if an amicus brief of mostly liberal law professors won't persuade Justice Thomas or Alito of its point, it can supply an argument that, say, Justice Ginsburg or Kagan can then use in an opinion or a dissent. That, in turn, can transform a merely "academic" idea into part of the law.
More broadly, academic work even in a purely academic setting will sometimes filter into the zeitgeist. The work of John Rawls has been cited exactly zero times by the SCOTUS; yet its impact on moral and political philosophy has undoubtedly been felt in the law in many ways that are difficult to trace.
Still, there is another difficulty that academics face when we seek to engage in public discourse. To the extent that academics have credibility, it comes from our dispassionate position. Rather than taking sides for partisan ends, we claim, we are merely telling it like it is. No doubt this is not a perfectly accurate description of any academic, but I do think that most serious scholars in most fields strive for something like this stance. A scholar with integrity recognizes evidence and arguments that point against her conclusion. She even recognizes when a position she thinks is correct, all things considered, leads to a conclusion she disfavors on policy grounds in particular circumstances.
Yesterday's Verdict column by University of Illinois Law School Dean Vik Amar is a good example of the latter. Amar didn't want Trump to be president (I assume). He doesn't even think that the Electoral College is a good way to pick a president. Yet his best analysis leads him to conclude, as he titles his column, that the "Electors Should Not Make Hillary Clinton (or Anyone Else Besides Donald Trump) President." When politicians will take positions that are manifestly self-serving and even downright mendacious, serious scholars who enter the public arena are fighting with one and a half hands tied behind their backs.
But fight that way we must anyway. If there is any justification for tenure, it is this: Serious scholars need job security to speak the truth, regardless of who finds it discomfiting.
Of course, even job security as against one's own university will not protect a scholar against a cultural revolution aimed at purging intellectuals. And even if a would-be American tyrant respects the decrees of judges enforcing the First Amendment, that will not prevent his brownshirts from intimidating faculty and others for engaging in what the tyrant and his enablers deem politically incorrect speech.
It is tempting to self-censor in response, to keep one's head down. Speaking up takes courage. But as Brandeis wrote about free speech in his Whitney concurrence, "courage [is] the secret of liberty."
In any event, cowardice is self-defeating. As Evan Osnos reminds us in a powerful New Yorker article, whether in Mao's China or elsewhere, autocracy depends on the acquiescence and collaboration of people who would not otherwise support autocrats. If truth is the first casualty of war, the shameless repetition of outrageous lies is a proven technique of autocrats. Everyone has some duty to speak up for truth, but those of us whose very business it is to tell the truth have some special obligation to do so.