According to many constitutional lawyers and political scientists, the presidential administration of Donald Trump (for scholars on the left), or the response to that presidency (for scholars on the right) poses serious dangers to American constitutional democracy and the rule of law. However, this Essay argues that a more careful understanding of the contemporary dangers to the American rule of law are both broader-based and longer-term: inequality among the public, and epistemic polarization among the public as well as among legal elites (including constitutional law professors themselves), undermine the capacity of the American people to use the political tools available in our constitutional system to resist any power-grabbing executive, regardless of ideology. The rule of law conflicts of the Trump administration, while dangerous in their own right, are fundamentally symptoms of this broader political and legal crisis.
Introduction: Should We Fear for the Rule of Law?
The rule of law is a basic evaluative criterion of a constitutional democracy such as the United States. At a bare minimum, the rule of law requires that the executive use its fearsome power consistent with preexisting law, including the Constitution. If that minimal criterion is not satisfied, a country cannot continue to be a democracy. This is so because a democratic people is a corporate entity that can only express its will through the laws: if the executive deploys the state’s force outside those legal constraints, the people lose their ability to control the state’s monopoly over legitimate violence.1
This Essay argues that the American rule of law is in danger and analyzes the causes of that danger. Part I describes the superficial (or perhaps I should say “short-term”) threats to the rule of law represented by the potential lawlessness of the current presidential administration, as well as the bureaucratic “deep state.”2 However, the remainder of this Essay argues that these threats are not the real challenge for the United States: the genuine (and medium-to-long-term) rule of law danger comes from broader properties of the American public and its legal, political, and social elites—and is likely to persist even if the current president loses the imminent election and departs office in January 2021.3 Part II paves the way for this argument by more fully elucidating the concept of the rule of law and the social/political strategic preconditions of its maintenance in a legal and political system—an account that hinges on the capacity for collective public action in defense of official legal fidelity.4 Finally, Part III describes two kinds of polarization: (a) “interest polarization,” or the divergence of interests among the population, rooted in social, political and economic inequality, which undermines the capacity of the general public to act in concert to hold their leaders to compliance with the law; and (b) “epistemic polarization,” or the failure of the people to maintain the capacity to come to a collective judgment about what their laws require of their leaders and whether those requirements have been obeyed.5
In the course of considering epistemic polarization, this Essay reserves special attention for the role of elites, including those elites within legal academia as well as the bench and bar. A central part of the duty of academics, along with judges (who are obviously the most important), journalists, and others, in preserving the rule of law is to signal to the general public an evaluation of the compliance of their leaders with the laws. They owe this duty not because legal and academic elites enjoy some special entitlement to come to a judgment about the conduct of political leaders, but simply because a healthy rule of law state features a division of labor that relieves ordinary citizens of the day-to-day chore of constantly monitoring the behavior of their politicians and their continued fidelity to the constitutional system. Put differently, ordinary citizens ought to be able to rely on their highly-compensated and high-status specialists to help them collectively operate the constraints their laws place on those who govern them.
Unfortunately, legal academics and elites are themselves members of society, and subject to its underlying polarization. The greatest struggle for the scholarly study of the law and the social sciences is our own situatedness. Those of us who study a society are also members of a society, often of that society itself, and, if not, then of some other society with its own epistemic standpoint. The interests and experiences derived from our social positions permanently color our efforts to make sense of our worlds.6 Thus, while this Essay cannot generate concrete policy recommendations for a solution to the polarization that poses such a danger to the American rule of law (diagnosis will, alas, have to be sufficient), at the very least, I write to encourage those of us within the legal profession and academia to try to transcend our own epistemic silos.
I. The Superficial Dangers to the Rule of Law
I begin by noting that there has never been the rule of law in the United States, at least not for all. Black Americans continue to be subject to arbitrary police violence as well as rampant abuse of police and prosecutorial discretion in the regime of mass incarceration, although the particular causal pathway from racial injustice to mass incarceration has recently been the subject of some scholarly debate.7 In our current political environment, it is imperative to also note that there are many reports of arbitrary police action against groups of persons, such as Latinx individuals, whose ethnic, racial, or religious identity is associated with stereotypes about undocumented immigration status, and that these arbitrary actions long precede the presidential administration of Donald Trump.8
The United States has arguably had a version of the rule of law for whites, however imperfect, for some time. But even if we assume the privileged standpoint of those who have not been the persistent victims of racialized lawlessness, the attentive reader may have noticed that many historians, political scientists, and constitutional law scholars have expressed alarm about dangers to America’s rule of law since Donald Trump began to occupy the White House.9
For those on the left (among which I count myself, although I shall endeavor as well as possible to transcend my own partisan attachments), the behavior of Donald Trump seems to be a particular sign of trouble for the rule of law. The United States president has taken to Twitter to, inter alia, declare that merely alleging that his campaign collaborated with Russians is “TREASONOUS,”10 pronounce an impeachment process to be nothing more than a “COUP,”11 and muse about whether the appropriate response to a leading congressional Democrat allegedly making up evidence against him would be to “Arrest for Treason?”12
While it might be easy to discount statements made over Twitter, the content of such statements, uttered by the man who commands the entire federal military and law enforcement apparatus, must not be taken lightly. The talk of treason raises legitimate rule of law fears because it suggests a willingness (indeed, openly threatens) to engage in partisan prosecutions in defiance of both the Constitution’s Treason Clause (which provides that the crime covers a very limited scope of behavior) and its Speech or Debate Clause, which protects members of Congress from legal punishment even for saying things that the President believes are made up on the floor of the Capitol.13 Treason charges or allegations, and related allegations of terrorism, subversion, sedition, espionage, or other crimes of disloyalty, have been a familiar weapon of autocrats against opposition leaders, activists, journalists, academics, and other enemies of a regime.14
Moreover, the threat to engage in partisan use of criminal allegations becomes more credible in the context of the President’s related attacks on the norm that prosecutorial choices should be based on the law, rather than on partisan considerations. For example, the President also took to Twitter to criticize his own attorney general for filing criminal charges against Republican members of Congress ahead of the midterms, and thus putting control over the seats in question.15 More recently, the Department of Justice reduced its sentencing recommendations for Roger Stone, a convicted Trump associate, after Trump tweeted about its unfairness—leading some to worry that he has, in effect, pressured the Department of Justice to grant leniency for criminal conduct to his political allies.16
As for the talk of coups, that seems to imply that the standard responses to coups (i.e., the use of military force) would be permissible in response to the lawful process of impeachment. The characterization of such impeachment as a “coup” reflects, I would suggest, a troubling unwillingness to distinguish between the use of the mechanisms provided by the Constitution to check a President and the criminal acts of enemies of the state.17
Moreover, this willingness to use the power of the state for partisan political, rather than law-enforcement ends, seems to have trickled down into the ranks of the federal law enforcement apparatus. In particular, the nation’s border forces, U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), seem to have taken Trump’s actions as license to enforce their own political predilections as law.18 For example, they have demanded that journalists admit that they do “propaganda” before allowing them to cross the border,19 and have denied the minimal protections of human rights law to asylum seekers.20
Most alarmingly of all, the lawless character of the nation’s immigration enforcement agencies has evidently bled into domestic law enforcement. In the summer 2020 protests against police brutality, Trump deployed a special forces unit of the Border Patrol into Portland, Oregon.21 Those federal forces engaged in particularly dramatic violations of ordinary American legal order, such as arresting protestors without charge or any probable cause to believe they had committed a crime, and violently battering a 53-year-old Navy veteran who had come to a protest to nonviolently ask them about the legal character of their actions.22
Trump’s encouragement of private violence at his political rallies also suggests a disposition to resolve political disagreements with force rather than pursuant to law.23 Trump has also denied the legitimacy of basic American constitutional institutions such as the independent judiciary. For example, he asserted, in an interview with the Wall Street Journal, that a Mexican-American judge had a conflict of interest in presiding over fraud litigation involving Trump University because of that judge’s ethnicity.24 Finally, in both the 2016 and the 2020 elections, Trump has denied the legitimacy of the ongoing election process.25 In 2016, he claimed that the vote would be rigged as well as that he was unsure whether he would accept its outcome,26 and in 2020, he refused, due to allegedly “out of control” ballots, to promise a peaceful transfer of power.27
That catalogue of infamies notwithstanding, we must pause before concluding that the rule of law fears are all on one side. There are real rule of law concerns raised in Trump’s defense as well, and those of us, like myself, who are on the left, and who also care about the rule of law, must not let our ideological commitments blind us to the potential that some of that which we are tempted to celebrate may also represent a threat.
In particular, it is genuinely troubling that so much of the damning information about Trump’s behavior has been anonymously leaked by military and intelligence officials.28 To those who fear Trump, these are whistleblowers, but to those who support him, the idea that the security agencies can directly interfere in electoral politics in such a fashion is itself indicative of a slide toward authoritarianism.29 We should not disregard those worries. Since 9/11, we have given the intelligence and military agencies immense discretion, and we do have substantial evidence that this discretion has been abused—let us not forget about the tortures and extraordinary renditions and the lawless state of exception of Guantanamo Bay,30 nor even about recent revelations that the Federal Bureau of Investigation (FBI) has disobeyed legal restrictions on the use of intelligence information collected under the authority of the U.S. Foreign Intelligence Surveillance Court.31 That grim pattern of behavior adds credibility to accusations of intelligence community impropriety.
It is possible that this behavior with respect to the use of the immense surveillance powers of the “deep state” represents a kind of lawless culture that raises the broader prospect of those powers escaping legal control. We cannot ignore the allegations of the right that these powers were turned against Donald Trump, even if you ultimately believe that Trump himself represents a greater threat to the rule of law. Indeed, it may be the case that both Trump and the intelligence agencies whose personnel (at least in some cases) oppose him are dire threats to the continuation of lawful, constitutional, democratic government in the United States.
Ultimately, however, the rule of law is larger than such transient political facts. It would be a serious mistake to conclude that the heart of any threat to the rule of law consists primarily in the misbehavior of particular executive branch officials, whether those officials are the president or the security services. The rule of law is in the first instance about the extent to which there are constraints that effectively compel officials to obey the law, not about whether those officials have lawful or lawless characters.32
In other words, the rule of law is institutional, not behavioral—what officials do can be evidence of the failure of the rule of law, insofar as observing officials casually violating the law gives us good reason to believe that they do not have to fear sanctions for doing so, and hence that the legal and political institutions of their state do not constrain them. But official disobedience is not the thing itself—you can have a state in which the rule of law has failed, but there is no official disobedience (if officials merely obey the law out of the goodness of their hearts), and you can have a state in which there is official disobedience, but the rule of law has not failed (if officials are irrational and disobey the law, but are promptly removed from office for doing so). Hence, our inquiry into the state of the rule of law in the United States must focus, in the first instance, on the capacity of our institutions and the people who stand behind them to actually force the president and intelligence officials to follow the law.
We should understand the behavior of individuals such as Trump (or intelligence community leakers), from this perspective, as potential precipitating factors for a rule of law collapse that may or may not already be latent in the community. That is, officials who attempt to defy the legal constraints on their actions may reveal that the underlying institutions and dispositions that would hold them to the law are dysfunctional. By so revealing, such lawbreakers may bring about the final collapse of those constraints, for revealing the inability of society at large to hold them to the law both communicates to other would-be malefactors that they too can toss aside the law, and communicates to the general public that efforts to enforce legal constraints against their leaders will be futile.33 (Of course, such officials also pose the short-term threat that they may use their lawless acts to destroy the institutions that would otherwise keep them in check.) But the heart of the problem is not the individual behavior, but the background conditions that allow the individuals to test the laws and get away with it.
Thus, we must make a small sojourn into the nature of the rule of law as well as the strategic preconditions for its existence, an exegesis,34 which draws on my prior research on the subject. Thereafter, this Essay will describe the threat posed by polarization to the strategic preconditions of the rule of law,35 and argue that a key threat to the continuing existence of the rule of law is polarization among both the general populace and political, legal, and intellectual elites and experts. It will distinguish between interest polarization36 and epistemic polarization.37 It will close by considering the interaction of those two forms of polarization.38
II. The Rule of Law: What and How?
In my prior research, I have explicated an account of the rule of law consisting in three principles of sequentially increasing demandingness.39 Here, I describe them in relatively abbreviated and informal terms: (a) the principle of regularity requires that state officials actually be constrained to use the coercive powers their positions give them only pursuant to preexisting law;40 (b) the principle of publicity requires that ordinary people within the ambit of the state be capable of actually making use of the law in order to constrain official behavior, both on an individual level (for example, to defend themselves in criminal cases) and on a collective level;41 and (c) the principle of generality requires that the laws actually treat all within the ambit of the law as equals, which transpires when variations in the legal treatment of people are justified by public reasons.42 We should understand the rule of law as a continuum, that is, as a political ideal that can be satisfied to greater or lesser degree, either by satisfying less demanding but not more demanding principles, or by satisfying principles with greater or lesser scope and reliability.43
However, in most realistic states, it should be difficult to observe regularity in the absence of publicity. Officials are unlikely to be effectively constrained by the law unless those whom the law protects (which might be less than everyone in the society, in the case of non-general states) have the ability to observe the law and official compliance with it, and, most importantly, work together to sanction those who have violated it. This is because the constraint of the powerful by law is at bottom a problem of collective action.44
The basic formal dynamic is that political leaders have incentives to build and maintain institutions that permit their own power to be constrained, but those incentives depend on them discounting the future to a fairly modest degree. For example, as political scientist Mancur Olson famously argued, leaders have some incentive to protect the rule of law in order to promote economic growth, and thereby increase the long-run rents they can capture.45 In addition, leaders may have an incentive to build the rule of law in order to facilitate their own capacity to credibly commit to punishing ordinary people for violations of law, and hence more effectively have their wills carried out.46 Moreover, leaders potentially have an incentive to promote rule of law institutions in order to protect themselves in case they are removed from power.47
However, such leaders may suffer from time-inconsistency. If someone who discounts the future too heavily finds themselves with a lot of power, they may be tempted to dismantle the legal constraints on their behavior. In that event, those whom they oppress will not be able to bring them back within the ambit of the law by individual resistance—political leaders typically control enough raw coercive power to push aside individual resistance.48 Rather, those who suffer from official lawbreaking will only be able to enforce the constraints of the law if they can mobilize the public at large, or some sufficiently powerful subset thereof, to collective action.49
I have argued that we should understand the classic institutions of the rule of law as supports for such action.50 For example, independent judges are valuable not because they have any of their own power to directly constrain powerful officials to obey the law, but because they are capable of sending credible signals to the public about when officials have disobeyed it.51 Hence, they are potentially capable of creating common knowledge about the practical effects of the law on official behavior, and making it possible for the public to mobilize—either through the political system or, in extremis, through force—to bring officials back in line.52
From this perspective, the real threats to the rule of law are not official misbehavior, but either a failure of public commitment to the law—the degeneration of the law to the point that it does not appear to genuinely be in the interest of the public at large to work together to hold it together rather than supporting authoritarians who are inclined to topple it—or the failure of the capacity of legal institutions to send a broadly credible signal of official misconduct if needed.
Moreover, collective action to resist the powerful depends crucially on trust.53 A citizen considering whether to resist lawless official action needs to know that a sufficient number of his or her fellows are committed to participating in acts of resistance—and, in order for that commitment to be meaningful, that they agree about what kinds of official acts constitute violations of the law.
The foregoing claim is, I contend, obviously true when citizen resistance might be met with coercive opposition from the government, as when the level of resistance needed from citizens reaches civil disobedience or other officially disapproved acts (or when the government has shown a tendency to respond to lawful peaceful protest with police violence). Citizens engaging in such resistance must have enough support from their fellows to avoid being immediately squashed by the state. But I further contend that a similar trust calculus also applies in ordinary electoral politics: to the extent citizens must sacrifice their other interests (such as their interest in voting for a candidate who more closely represents their policy preferences) in order to expend their vote to punish a lawbreaking official, they only have a rational incentive to do so if they believe that vote to be likely to be effective.
Thus, in the absence of widespread knowledge about a general commitment to the rule of law (i.e., trust), a polity may suffer from a phenomenon analogous to what Timur Kuran has called “preference falsification,” where opposition to the regime is widespread but latent, because nobody trusts their fellows enough to show or act upon that opposition.54 From this it follows that another failure condition for the rule of law is widespread citizen inability to actually come to reliable beliefs about the extent to which it is in the interests of their fellows (as those fellows perceive their interests) to defend the rule of law. Relatedly, the rule of law may also fail even if there is a widespread and generally known shared interest in the rule of law, if citizens do not know the extent to which their fellow citizens also share a common set of credible signals of lawless official behavior (and hence do not know that they can come to the necessary common beliefs about when coordinated action is necessary to support that action).
One useful way to describe (or a dimension of) these different failure conditions for the rule of law is as two forms of polarization, one relating to interests (“interest polarization”), and the other relating to knowledge (“epistemic polarization”).55 I now turn to a description of those two concepts.
III. The Problem of Polarization
A. Interest Polarization and Inequality
I shall use the term “interest polarization” for one possible consequence of a highly unequal legal system or a highly unequal society at large, in which increasingly few citizens see the existing legal order as sufficiently better than the available alternatives to be willing to defend it.56 The basic logic of this idea is that if existing political and legal institutions are not serving the interests of some citizens, for example, in the context of severe oppression, those citizens may lack an incentive to do anything to support its maintenance and may even begin to work for its destruction. To the extent the rule of law depends on those citizens’ support (which in turn depends on the balance of power in that society),57 their unwillingness to provide that support may allow official lawlessness to go unchecked and the rule of law equilibrium to collapse. The same may also obtain if some citizens or other political, social, or economic actors (such as multinational corporations) become so powerful that they prefer a world in which the law fails and they can unrestrainedly exploit others over a world in which the law protects them from exploitation.58 The term “polarization” is appropriate insofar as it captures the notion that the public may be divided into camps who have radically different standpoints on the legal system in virtue of the simple fact that it is much less obviously consistent with the basic interests of some citizens (if at all) than others.
During the Obama administration, this worry was most saliently captured by the increasing prominence of police killings of African-Americans, and the seeming inability (or unwillingness) of the government at all levels to stop it.59 The philosopher Bernard Boxill has traced out two traditions in African-American political thought, what he calls the “assimilationist” and “separatist” traditions.60 But we could instead call them the “still trying to get the protections of law” and the “just giving up” traditions. There has always been a tension within the African-American community as to whether the correct response to the arbitrary violence that the state has always authorized against African Americans, whether through slavery, through Jim Crow lynchings, or through police murders, is to fight even harder to secure the protections of law for all, or to simply throw one’s hands up and seek alternatives in violence—or, as the Black Panthers did, confronting police with law-books in one hand and guns in the other, try to do both at once.61 Arguably, increasing disillusionment with the evidence of open season for police killings of Black Americans drove some of the sizable drop in Black electoral turnout between 2012 and 201662—although voter suppression after the end of the Voting Rights Act preclearance formula, which was struck down in Shelby County v. Holder,63 the associated increase in racially biased voter ID laws,64 as well as the world-historical event of Barack Obama being on the ballot in 2008-12 may also have been involved.65
On the other side of America’s race line, one of the now standard explanations of the 2016 election is a similar phenomenon on behalf of rural whites. Experiencing economic disinvestment in their communities, a staggering rate of opiate deaths, and other pathologies born of urban-rural inequality, and, on some accounts, hearing a public discourse that focused on remedying injustice against communities of color primarily in urban areas but ignored their own suffering, white voters in rural areas lashed out at the political establishment via votes for Trump.66 To the extent that is true, it is a story of a kind of political alienation that may have been reflected in a “let’s blow up the world” approach to voting for Donald Trump, one that privileged causing chaos over any kind of policy commitment.67
The key worry that this may suggest for the rule of law is that the same forces that lead to political alienation could also lead to legal alienation. In the face of dire inequality, in which it does not seem like the government at large, whether interpreted primarily as a political system or primarily as a legal system, is genuinely serving those who are at the bottom of the socioeconomic hierarchy, there may be little reason for the worst-off to engage in costly and even risky collective action to preserve the rule of law. Alternatively, those who are doing badly may begin to care less about the preservation of a legal order that does not seem to serve them, and to instead act politically, if they act at all, on the basis of other, less public-regarding, interests. Some hint of this may be seen in the stubborn persistence of a baseline 40% or so approval rate for Donald Trump, seemingly no matter what he does.68 Another possible worry is that this approval rating may suggest to him that key constituencies, whether in the electorate (and hence in Congress) or even in the armed services and police forces, may continue to support him if he escalates his challenges to legal propriety.69
In addition to this short-term problem of interest polarization, we may face a long-term structural problem which revolves around the disjunction between the public law and the private law dimensions of the rule of law. This is a disjunction that is reflected in the academic literature in a divergence between the rule of law scholarship in public law and in private law.
For those whose primary areas of study and practice are in the economic realm, the significance of the rule of law centers on ideas such as secure property rights, enforceable agreements, and, more abstractly, stable expectations which allow people to make complex plans, and, thereby, in part, promote economic development.70 By contrast, for those of us in the public law realm, the rule of law has a different valence, one exemplified more by its dark contrasts—executives who cast aside the legal restraints on their behavior, and with it, the sovereignty of a democratic people; police who kick in doors and railroad suspects—and the heart of the ideal is not stable expectations so much as a social world in which all can stand tall secure in their legal equality and their freedom from arbitrary power.71
Recognizing the disjunction between those two visions of the rule of law, some scholars have suggested that it is possible for there to be a “dual state” in which the private law conception is achieved while the public law is cast aside—in which property rights are protected for investors while security forces are given license to run rampant against those who would dare advocate for their regulation, or who would demand accountability for the violation of noneconomic private rights by those in power.72 This has been the perennial dream of authoritarian capitalism, most salient in the Pinochet dictatorship in Chile.73 Such experiences have led some scholars to suggest that the rule of law may have merely contingent value, for example, at the later stages of the introduction of capitalism, or even that arbitrary powers are positively beneficial for the introduction of capitalist forms of economic organization.74
Classical forms of the dual state rooted in the violent and lawless repression of dissent, it seems to me, are fundamentally unstable in the long run, for a violently authoritarian capitalist dual state requires legions of low-level dispensers of violence to carry out one’s beatings, disappearances, and the like in order to hold power with terror, as well as intermediate officials to command them. Neither those armies of thugs nor their intermediate commanders necessarily have an interest in promoting the dual part of the dual state, that is, in refraining from expropriation and corruption, and thus may undermine the protection of property and contract essential to the dual state. However, it might be that such a dual state is possible to the extent it generates sufficient prosperity to permit its legions of violence dispensers to become well-paid and highly bureaucratized.
Contemporary China arguably is developing something like a modern, technocratic and bureaucratized, second-wave dual state. While China manifestly exercises arbitrary power over the day-to-day lives of its citizens, as exemplified by its cruel mistreatment of the Uighurs,75 as well as its brutal crackdown against dissent in Hong Kong,76 that power seems to be compatible with the capacity of a massive business sector to operate with, at least, sufficient security of property and contract to make a profit.77 In part, this may be due to the development of technological tools to exercise arbitrary power without the direct application of violence, such as pervasive surveillance combined with the capacity to ratchet down the affordances of daily life in order to sanction disfavored citizens.78 The infamous “social credit score,” pursuant to which individuals perceived to have misbehaved by the lights of some official are not beaten up but, at least in the future, may be simply prevented, by an entry in some database, from being able to purchase train tickets, may stand as the exemplar of this pervasive—and remarkably thug-free—capacity to deliver coercion, potentially on an arbitrary basis.79 And while China undoubtedly delivers some of its arbitrary power with violence (it requires soldiers to put the Uighurs into concentration camps),80 its violence seems, at least from the outside, to be particularly well controlled, at least insofar as it does not seem to pose a threat to the stability of the government or its economy.81
In that sense, China might represent a novel variation on the discretionary administrative state that classical rule of law scholars feared, in which ordinary citizens are simply subject to increasingly oppressive bureaucratic supervision.82 It remains to be seen whether this version of arbitrary power will ultimately be compatible with the preconditions of economic success, but the economic, military, and political prominence of China thus far suggests that it may well be.
If a dual state is possible without undermining the stability of those legal rules that protect the holders of property, then property-holding elites may lack an incentive to support legal constraints that may protect non-property-holders.83 This is especially true if the absence of the rule of law with respect to non-property-holders facilitates the exploitation of labor or otherwise promotes the profits of property-holders. For that reason, the problem of China represents an urgent research question for rule of law advocates in the United States as well—what, precisely, is it that keeps the Chinese government from expropriating Alibaba, Foxconn, and the other immense economic enterprises in the country—and is that factor: (a) sufficiently stable, relative to the likely shocks that China may experience, to permit it to continue and to permit the leaders of those companies to feel relatively secure even in the absence of a general rule of law protecting, for example, the Uighurs; and (b) capable of being exported to other social, economic, and political contexts, such as the United States? If so, the rule of law in the contexts to which that model might be exported is in danger, for such a model permits the interests of property-holders and non-property-holders in the protection of the rule of law to diverge.
B. Epistemic Polarization: Hunting with the Owl of Minerva
In Part I of this Essay, I noted the existence of genuine rule of law worries on both sides of our contemporary ideological divide. But the potential leakage of our ideological divisions into our estimations of the state of the rule of law itself represents a substantial cause for fear.
By “epistemic polarization,” I mean the problem of radically different sets of knowledge and belief held by those committed to the rule of law from different ideological starting points, which may impair the capacity to develop the shared beliefs necessary for collective action. Such polarization is not, of course, limited to the rule of law, and indeed may be most vividly illustrated in differences in response across party lines to the COVID-19 crisis.84
Suppose it is the case that I and my fellow leftists, and our equivalents a similar distance on the right, are equally committed to the rule of law and to the maintenance of the existing legal system, but have radically different perceptions of whence the short-term threat comes. Due to familiar pathologies from social psychology as well as partisan networks, such as partisan informational bias and group polarization,85 it may be that I and my counterparts on the right may come, in good faith, to opposite views about the nature of the threat—because, for example, my right-wing mirror image has access to different kinds of information about intelligence community whistleblowers (or, as the other side says, tactical leakers) and different doctrinal and normative starting points about the set of things that the President is entitled to do.86
Epistemic polarization is not just (and may not be primarily) a general, public phenomenon. It is also an expert phenomenon that undermines our ability to diagnose rule of law threats in the first place. Arguably, legal academics, political scientists, and other scholars who care about such things, stand in a similar position as the courts and the free press. That is, all are expert (or potentially expert) evaluators of whether officials are complying with the law, and hence as among those institutions that, in a healthy rule of law system, would help send signals on which the public could coordinate—in particular, signals to tell the public when their officials are disobeying the law, and hence when it is time to take mass action to sanction those officials. (Obviously, the judgments of the courts ought to generally count for rather more than ours.)
Ideally functioning institutions for coordination would have the capacity to aggregate different interests and epistemic standpoints to generate something like common knowledge of the conditions under which collective action is necessary to defend the rule of law. Considering courts again as the key example, one of the reasons why ordinary citizens should be able to rely on the judgment of a well-functioning Supreme Court is that such a well-functioning court should be relatively immune from epistemic polarization, insofar as it should have the capacity to generate and display consensus from diverse sub-groups of legal experts within the institution itself; or, to the extent there are disagreements, those disagreements ought not to just track partisan backgrounds of the justices.87 Arguably, such ideal consensus could also increase the capacity of judicial institutions (and likewise, academics, the press, and others) to win the trust of the public at large, to be seen as representing judgments that transcend ideology and interest rather than reflect them. However, that last proposition—commonly believed, for example, among lawyers who have attended to the motivations of Chief Justices like Marshall and Warren to produce unanimous opinions in important cases—may not be supported by the evidence.88
Even if unanimity does not enhance public trust, it still seems eminently plausible that blatant partisan decisionmaking—such as a large number of prominent decisions in which the Court is divided along the lines of the party of the president who appointed a given justice—can undermine that trust. And, if epistemic polarization in fact extends to the point that the Supreme Court is widely distrusted, it no longer can send credible signals of official lawbreaking. Thus, its capacity to facilitate public coordination in defense of the rule of law may be seriously undermined.
If this is a problem for courts, it is an even worse problem for the press, academia, and the like, since the Supreme Court usually has the advantage of clear decision rules to aggregate divided opinions. Even in a controversial 5-4 decision along partisan lines, the public can identify the outcome. For that reason, if the public generally accepts the legitimacy of the Supreme Court as constitutional interpreter, they can coordinate even on the basis of a highly polarized result (at least until things get so bad that the people have to deal with pluralities, and proliferations of complex opinions without a clear outcome).89 But other institutions that may serve as a coordinating function and currently appear to be highly polarized, like the press and academia, do not benefit from such a rule. Accordingly, it is much clearer that polarization in the case of academia and the press hurts their ability to help the public determine the lawfulness of their officials, for those polarized institutions cannot send clear signals at all.
At least as a tentative hypothesis, then, it seems reasonable to state that if experts—in bench, bar, academy, political institutions, and the press—display radical epistemic polarization, looking at the world and seeing entirely different phenomena, that undermines their capacity to help the general public figure out whether they need to mobilize to keep their officials in line.
Moreover, ordinary citizens may reasonably make inferences about their fellow citizens’ beliefs based on the beliefs of those who have platforms. So, in a world where journalists, academics, and the like regularly display extreme disagreement about the lawfulness of official behavior, it is reasonable for a citizen to conclude that the general population also suffers from such disagreements. Such a citizen may thus conclude that their fellows cannot be counted on to support them in collective action. That, in turn, undermines the incentives for our hypothetical citizen to engage in collective action themselves, for the simple reason that the expected benefit (likelihood of success) from participating in collective action increases with the number of participants (this is so for the reasons noted in Part II, namely, that citizens need to be aware of the likelihood of their fellows’ participation in collective action in order to know how safe and how likely to succeed their own actions will be).
It may be that I am overestimating the amount of polarization from which the United States is suffering, whether interest or epistemic and mass or elite. But there is empirical evidence to suggest that we have good reason to be worried about the degree of epistemic polarization with respect to the rule of law.90 Moreover—this is the ultimate point of this Part—if there really is such extreme polarization, whether epistemic or interest-based, it is a danger to the rule of law regardless of the intentions of the current occupant of the Oval Office. The mere fact that half of our legal and political experts are screaming “this guy is an authoritarian in waiting, and we have to stop him,” while the other half are screaming “efforts to stop him are nothing but a lawless coup,” itself communicates information. It tells our fellow citizens that they cannot rely on one another to act in a unified fashion in the event that they perceive official lawlessness; and it sends the same message to those who hold official power and may wish to abuse it. So, even if Donald Trump has no plans to cast aside the rule of law, some later president might (even if they are a Democrat!), and that later president can observe our inability to come to enough of a consensus evaluation of Trump’s behavior to decide what to do about it. Such a president has an incentive to grab power, because they know that the rest of us cannot get it together long enough to resist them. This is very troubling indeed.
I think there is strong reason to believe that we are presently experiencing an extreme degree of epistemic polarization, particularly in the judiciary. As Jack Balkin explains in a recent book, judges are embedded in networks of legal elites (including politicians and law professors) whose opinions matter to them, and, in times of political polarization, as the opinions of those elites diverge, we can expect judicial perceptions of even what the basic norms of democracy (or, I would add, the rule of law) require to diverge.91 In this way, political polarization in the ordinary, political scientist’s sense can lead to epistemic polarization in the sense elucidated in this Essay. Put differently, partisan (political science-style) polarization drives a divergence in the views, including legal views, of non-judicial legal and social elites, and, since judges are embedded in social networks of such elites, ultimately leads to judicial divergence as well.92 This is doubly the case when, as Balkin also points out, the appointment process has been deeply politicized, in particular, with a President who has chosen to appoint judges who have been explicitly vetted by conservative legal elites.93
While Balkin points to the Supreme Court as a key indicator of judicial polarization,94 I think we can also see it in quite a striking way in the lower courts’ response to the COVID-19 pandemic. At least two Trump-appointed district court judges have struck down state and municipal public health orders to prevent the transmission of COVID-19.95 In doing so, both have disregarded longstanding controlling Supreme Court precedent,96 and, more importantly, offered legal arguments that, I would submit, are strikingly orthogonal (even alien) to the mainstream legal consensus.97
In the first of those cases, a district court judge explicitly and openly appealed to the language of Christian theology (complete with Bible quotes) to explain the basis of his ruling in favor of a church that had (allegedly) been ordered to not hold Easter services due to the danger of COVID-19 transmission.98 In my view, such statements blatantly violate the norm of judicial neutrality.99 I would go further: the extensive discussions of Christian orthodoxy had no legitimate judicial purpose, and, for that reason, the court itself violated the Establishment Clause by including them in its opinion.100 In effect, such an opinion suggests to the reader that the judge’s own (apparent) religious beliefs were the deciding factor in his decision.
In the twenty years since I myself graduated law school, I have never dreamed that I would see a judicial opinion in a federal court invoking “the state-sponsored murder of God’s only Son.”101 But of course I think that way, I am a member of the left-leaning wing of the legal elite (I guess). The conservative legal elites whose opinion Judge Walker doubtless cares much more about are probably less likely to share my evaluation of his opinion (though it is hard for me to model their views in my own mind). Indeed, there is strong evidence to suggest that conservative legal elites approve of Judge Walker’s decision to give a sermon from the bench, as, not long after he issued that opinion, the Senate confirmed his promotion to the U.S. Court of Appeals for the District of Columbia Circuit.102 Walker’s opinion and his subsequent promotion thus illustrate that hybrid partisan-epistemic polarization crosses the judiciary, the academy, and the political realm.
The second recent COVID-19 opinion is just as surprising, but for different reasons. In striking down the Governor of Pennsylvania’s COVID-19 business closure orders, the court held that there was a substantive due process fundamental right, under the Fourteenth Amendment, to “support himself by pursuing a chosen occupation.”103 This, as any lawyer who has completed a 1L Constitutional Law course will recognize, is the idea of the infamous Lochner v. New York case,104 with its appeal to “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.”105 The district court cited Lochner, and said the following about that case and the jurisprudential era it represents: it “was considerably recalibrated and de-emphasized by the New Deal Supreme Court and later jurisprudence. Nevertheless, our Supreme Court has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation.”106 To a member of the left-leaning side of the legal profession, this passage is truly astonishing: Lochner is among the most discredited rulings in constitutional history,107 and the Supreme Court has repeatedly not only indicated that its abuse of the doctrine of substantive due process to find a fundamental right against ordinary regulation of economic life was incorrect, but even used it as a kind of epitome of judicial overreach.108 Hence, dissenters in fundamental rights cases routinely accuse the majority of illicitly resurrecting Lochner.109 Yet, as Jamal Greene points out, libertarian legal scholars have made some efforts to rehabilitate Lochner.110 Illustrating Balkin’s points about the relationship between academic polarization and judicial polarization,111 it would seem that those rehabilitative efforts have borne fruit in at least the one case.
My point is not to criticize those two cases (although I believe there is much to criticize). Rather, it is, in a sense, didactic and directed at my fellow left-leaning and even centrist112 law professors, lawyers, and (in the unlikely event they should be listening) judges: take a look at those two cases, and contemplate how utterly bizarre it will (I believe) seem to you to see Christian theology in one of them, and Lochner cited approvingly in the other. Then contemplate that these are not cases with high structural partisan stakes—the cases did not revolve around, for example, voting rights, or the power of the President versus Congress, or even hot-button culture war issues like abortion or LGBT rights—yet the kinds of arguments that seemed plausible to these Trump-appointed judges and the audiences they care about are wildly out of the bounds of what we in the legal left and mainstream consider appropriate. Now consider what might happen in a case where the political stakes are truly high, where the government has (by our lights) cast aside the legal restraints on its conduct—and consider, and share my alarm, about the prospect that the judiciary may not be able to speak to the public with one voice or even in one jurisprudential language. The rule of law is in critical danger.
C. When Epistemic and Interest Polarization Combine
The state of affairs in the United States may pose even more reason for concern than I have already articulated. Interest polarization and epistemic polarization are not wholly separate, and can combine in a kind of death spiral rooted in the fact that one’s sense of how one’s own interests are to be vindicated depends on one’s perception of the interests of others.
This is how one might read the very worrying spread of calls for the incarceration of one’s political opponents, which began with Trump’s campaign slogan “lock her up,” and spread, during the Democratic primary, to calls to “lock him up” chanted about Trump, at a baseball game and a Bernie Sanders rally.113 Some Democrats may have concluded, from Trump’s behavior, that many Republicans are not committed to peaceful and lawful methods of resolving political disputes. But since peaceful and lawful methods of resolving political disputes are only in equilibrium when that commitment is shared across partisan lines, if it is true that Republicans have begun to treat politics as war, then it is rational for Democrats to set aside their own commitment to peaceful and lawful methods of resolving political disputes. And Democrats can reason thusly even if they are misinformed about the extent to which Republicans have cast aside their commitment to the law; the same point, of course, goes in the other direction as well.114 We could, without too much hyperbole, describe such a situation as a death-spiral of distrust, in which partisan groups in the community inaccurately perceive their interests as diverging, and begin to act as if that was true—genuinely disregarding the constraints of the law in order to fend off perceived threats from the other side—hence, reinforcing the perception of interest divergence and, in turn, the pathological behavior, and so forth. In that sense, epistemic polarization can lead to interest polarization. Thus, the spread of “Lock (Him/Her) Up.”
This is a more general point. As scholars like Timur Kuran have shown us, coordination problems are fundamentally information problems.115 If, as I have suggested, maintaining the rule of law is about the coordination of people with different interests, then it is at bottom about the maintenance of sufficient trust in one’s fellow citizens to perceive it as rational to sacrifice short-term interests in political victories of various kinds in order to preserve the long-run benefits of a functioning legal order.116 And our epistemic polarization may directly undermine that capacity.
Conclusion: The Danger is Us
At the end of the Preface to Elements of the Philosophy of Right, G.W.F. Hegel gave us the famous aphorism usually translated as something like “the owl of Minerva spreads its wings only at dusk.”117 Like everything else in Hegel, that passage is subject to a multitude of readings, but one reading that appeals to me is as a comment on the inability of philosophy to place itself outside of history—what philosophy does is teach us about the path that we have taken to get to the place where we are, and not so much to provide a roadmap to the next stage of historical development.118
It seems to me that a similar principle applies to political science and to law. There is no, to borrow Thomas Nagel’s phrase, “view from nowhere”119 outside of the societies and the periods of time in which we live. And this is an inherent threat to the identification of the dangers in our current state of affairs. I look at Donald Trump’s behavior, and the behavior of ICE and the Border Patrol, and I fear for the rule of law. But I am also a member of this society, and my ability to see is limited by my boundedness in place, in time, and in the social world. Those fears could be biased by my horror at the policies that Trump espouses, and that those agencies implement. It could be that the greater threat in terms of elite behavior is the practice of intelligence agencies undermining the executive’s control of their conduct, including by leaking information that is damaging to him. And our current degree of polarization within the institutions, particularly the courts, but also the press and academia, that communicate trained judgment to the public about whether officials have complied with the law, makes it difficult for any of us, to say nothing of the public at large, to have confidence in our judgments.
But the limitations of the Owl of Minerva are bounded in the case of the rule of law. For even though I, like the rest of us, cannot easily look at the world from outside our own polarization, we can observe that polarization, both in the elite institutions of bench and bar, and academy and press, and in the public itself. And, I have argued, regardless of whether I am right about the dangers posed by Trump, the polarization itself poses a severe threat to the rule of law.
Importantly, polarization also threatens our capacity, as a demos, to resist other rule of law dangers. For example, it seems to me quite likely that the role of the Homeland Security immigration agencies (CBP and ICE) in domestic law enforcement poses a serious threat to the rule of law, because those agencies lack a culture of compliance with law, and hence are readily available as a tool of arbitrary executive coercion—as we saw in Portland.120 However, the American people will only be able to rein in such agencies if we can come to some broad-based consensus about the extent to which even those who lack legal immigration status are nonetheless entitled to some constitutional protections, and work collectively within the political sphere to impose reforms on the Department of Homeland Security. If we could do so, we could simultaneously reduce interest polarization (by improving the extent to which all in the territory of the United States enjoy legal rights) and epistemic polarization (by publicly demonstrating our commitment to the rule of law). But the trick, of course, is to get there.
I presently lack the capacity to make meaningful recommendations about further concrete and immediate steps for progress in society at large, at least not beyond either the obvious (we have to do something about inequality in this country), or the solipsistic (liberal and conservative constitutional law professors need to stop shouting at one another, start trying to find shared commitments, and work together on them—surely there are some such commitments).121 The norm in law journals of closing one’s work with concrete recommendations is probably counterproductive at any rate, to the extent it encourages facile policy proposals by those who have not done the difficult work to actually consider the consequences or implementation details of those proposals. Instead, I simply close with a call for those who do have ideas on how we might reduce our polarization, and restore cross-partisan credibility to the institutions—the most important of which are the courts and the press, but academia as well—that ought to signal to the public the extent to which their officials are complying with the law, to join together in a research program to try to sort it out. The rule of law may depend on it.
Postscript: On the Passing of Justice Ginsburg and the Accelerating Crisis
On the eve of this Essay’s publication, Justice Ruth Bader Ginsburg passed away. Her death comes at the worst possible time for the institutional legitimacy of the Supreme Court, as Republicans will doubtless rush to install a partisan justice, while Democrats will doubtless rush to impede the nomination as much as possible, and, should they win the White House and the Senate in the impending election, may very well seek to “pack” the court, in order to reverse the extreme rightward shift occasioned by any Trump nominee by increasing the number of Justices and providing Joe Biden with several immediate appointments.122
Should the parties pursue those strategies, it is difficult to imagine how the American people can continue to perceive the Supreme Court as a legitimate arbiter of official legal propriety. And yet, because the constitutional stakes of Supreme Court appointments in a system with lifetime terms for Justices, strong constitutional review, and extreme partisan conflict are so high, it would be irrational for partisans of either party not to take these measures. Indeed, my own political commitments lead me personally to hope for a court-packing strategy in view of the likely dire costs to important policy issues such as climate change, the prevention of racialized police brutality, health care reform, and women’s reproductive autonomy from years of a Supreme Court with Neil Gorsuch at its ideological center.
Thus, I fear that it is likely to become substantially more difficult for the Supreme Court to credibly interpret the law for the public—not because of its ideology (a Gorsuch-centered Court built without partisan political bloodshed could remain credible) but because of the process by which its members are selected. And a likely consequence of the declining credibility of the Supreme Court (and, for similar reasons, of lower courts) is that those of us who care about lawful government will almost certainly struggle in the coming years to identify when public officials are following the laws protecting individual rights and their own democratic accountability.
For those of us within the legal system, those grim likelihoods (at least in my estimation) behoove us to act with even greater urgency to figure out alternative means to make it possible for there to be at least a minimal patchwork of public consensus on what the law demands of government actors. (Institutional reforms to replace life tenure with long, fixed terms for the Justices seems like a good long-term first start, but will do nothing to solve our problems in the immediate future—and to get even that, we would have to build enough cross-partisan consensus to get the Constitution amended. Right now, that seems like a fantasy.)
Moreover, it is reasonable to expect a growth in demands for structural change in the countermajoritarian institutions that brought the United States to this dire pass. It is shocking that our system has conferred upon a minority party (at least judging by the Presidential popular vote in 2016 and the 2018 midterm results) the power to entrench its own ideology in constitutional jurisprudence. It is unbelievable that Democrats will sit idly by and allow it to happen, at least in the long term. Perhaps drastic action will not happen immediately, but it is ludicrous to expect a party that represents a growing majority of the population to tolerate a political structure that relegates it to a minority position in national government for very long. For that reason—in the medium-to-long term if not in the short term—it seems entirely plausible to expect that at a minimum movements like statehood for Puerto Rico and the District of Columbia as well as challenges at the state level to the electoral college system (such as efforts to create an interstate compact to allocate electoral votes to popular vote winners) will grow in strength. And this may all be to the good, democratically speaking. But such efforts, if they come to pass, will undoubtedly be perceived by Republicans as “constitutional hardball” which will further our existing political, and then epistemic, polarization.
If I am right that we are entering a period of time that will be particularly conducive to movements for structural reconstruction, then we have additional reason to fear for the rule of law, for opportunistic populist political leaders from either side of our ideological divide might seek to arrogate power to themselves under the guise of implementing majoritarian reforms. It is likely to be profoundly difficult to distinguish between democratic reforms to our obsolete institutions and the gutting of the legal constraints on power, either of which will appear in the form of political leaders claiming a mandate from the people to make deep changes in our constitutional order. This is true whether such changes come from the right or the left. From my standpoint, as a rule of law scholar within the latter of those political alignments, I both desperately hope for reforms to the countermajoritarian institutions that I see as entrenching reactionaries in power, but also desperately fear the destabilizing consequences of any such reforms.
The crisis is upon us. The future is drastically uncertain. Our only way forward as a demos is to genuinely come to know one another, our shared commitments, and the places where our visions for lawful constitutional democratic governance overlap, and then seek to pursue those, together, from the ambition to continue forward together as a political community. Let us start in the law. Let us build social capital, as a profession, spanning bench, bar, and academy, working together across ideological lines on shared projects within our professional domain that can reinforce, to one another, our knowledge of one another and our commitment to the rule of law. I would like to be able to offer more than that, but I cannot.