Kim Lane Scheppele (7:13)

So lovely to be here.

Margaret Talbot (7:14)

I want to start by saying that what we are all seeing now inside the bubble of the US Media is shocking to most of us. We're seeing inspectors general fired and the release of violent insurrectionists and rewriting the Constitution wholesale and joking about a third term in office and, you know, removing security from people that you have put targets on their backs. I want to suggest Tell me if I'm wrong. I think you're probably the least surprised person that I know right now at the surprising things that have come about in the last two weeks since inauguration.

Kim Lane Scheppele (7:48)

Yeah, unfortunately, you're absolutely right. So I lived in Hungary for a long time. I also lived in Russia for a long time, and this is the third time I've ridden this escalator from democracy into someplace very dark. And unfortunately, what we're seeing here is so similar to what happened in Russia and particularly to what happened in Hungary. And part of the reason why it's so alarming is that Americans have this idea that when democracy fails, it's going to fail with tanks in the streets, it's going to fail with some radical rupture, it's going to fail with normal ceasing to be normal. And when you look at how autocracy works these days in the rest of the world. It almost always comes in on the backs of a free and fair election. So somebody who is, we call them populists, but you can call them whatever charismatic leaders who promise to shake things up, they get elected often fair and square. The first time you go back and you look at the election monitors, reports from when Hugo Chavez was elected in Venezuela or when Vladimir Putin was elected the first time in Russia, or when Viktor Orban was elected the first time in Hungary, the election monitors all said, free and fair election, no problem. And then what happens is that as soon as these guys come to power, they start to just take over and disable all of the checks on executive power. And they do it while their cover story is a lot of inflammatory rhetoric that causes pain to people. So now we're seeing immigration, we're seeing attacks on people with gender fluidity, we're seeing attacks on affirmative action, we're seeing attacks across the board on vulnerable groups and people who have really never been treated equally. But behind the scenes, what's that's disguising. This was also true in Hungary. It was true in Venezuela. It was true in Turkey. I mean, all these places, inflammatory rhetoric disguises the real work of autocracy. And what's the real work of autocracy? Removing all checks on executive power. And a lot of that is happening in a very unsexy way, in laws that are buried deep beneath the surface that only a technical lawyer could love. And that's where you start to see chipping away at every single constraint on what the president can do. Now, America is a very big and complicated system. It's going to take a lot to capture all of it, because we have federalism, because we have a lot of nooks and crannies where different sources of power reside. But Trump, in his first term of office, had not yet discovered this formula that you need the law to entrench yourself. So he did a lot of horrible things. He caused a lot of pain. He was incredibly arbitrary. He loves to sign executive orders. But when he left office, Most of the U.S. government, you know, it was battered, it was beaten. He dropped it on the floor, it cracked. There weren't people who were put into important positions, but he hadn't changed the legal infrastructure, except for one thing, and that is the Supreme Court, hence this podcast. So now what I think Trump learned is what a lot of these autocrats learned. Viktor Orban was in power once and lost power because he didn't learn this lesson when he came back and now when Trump is coming back, what they learned is that you have to learn to entrench yourself. And it helps if you compromise some institutions when you're in office the first time. But what Viktor Orban did and what now Donald Trump has done is to use their time out of office to put together a team of people who will write all the laws you need to entrench yourself. And it's being written by private groups. It's not going through the normal lawmaking process. Private lawyers are writing up all of these plans. And then as soon as you come into power, you start to shovel this stuff out the door as fast as you can. You take advantage of incredibly obscure laws already on the books that are already give the executive tons of power. You override. You might declare an emergency, for example, we've seen two of them declared this week in the US Already, or I guess it was last week, or maybe it's. And who knows how many more there will be. But, you know, there's a lot of these emergencies being declared that give the president additional powers, but there's also new executive orders that are simply grabbing power right now.

Margaret Talbot (12:24)

It sounds to me, Kim, like what you are saying is, and I know this is simplistic, but as you're trying to make sense of this flurry of executive orders that are coming at all hours of the day, and it's really hard for most of us to triage, you know, what's meaningful, what's important. You know, we keep saying on this show they are not the law, but they are certainly, you know, have promises and instructions to agencies how to conduct themselves. It feels almost like you're saying that there is one bucket that is distractions, you know, chaos, confusion. There's another bucket that's really systematically shoveling power back to the executive branch and constructing an impermeable executive branch. Is that the best schema for thinking about this?

Kim Lane Scheppele (13:10)

Yes. Yes. And, of course, that bucket of distraction is also actually harming people. And what it does is it takes most of the opposition and pulls their attention over to that. So, for example, we've seen immediately lots of lawsuits on birthright citizenship, lots of people putting out advisories on what to do if ICE comes knocking on your door. All that's crucial, and people should be working on those things because these kinds of initiatives are causing real pain. But there's another set of things that's not getting nearly enough attention, and that is the second bucket, which is all the stuff that is consolidating power in the executive. So Let me tell you two things that look familiar from Hungary, because these were really crucial in the early days. So one thing Orban did was to immediately suspend the civil service law in order to fire tons of governmental workers. Okay. Now, we've seen that a lot of the things that Trump has been doing is to rattle the civil service. Now, you know, the Biden administration saw this coming. They enacted a regulation that actually made it impossible to directly fire people who had civil service protection, which is why you see these new executive orders coming in, and what they're doing is they're reassigning people to jobs they can't possibly want to do, or they're putting them on paid leave just to get them out of the way. So the Biden regulation is doing something to slow this process down. But in some of these executive orders, they actually say, in our view, this Biden regulation is unconstitutional, and so we are going to ignore it, which is why they're just firing some people also. Okay. But attacking the civil service is a big chunk of what Orban did, and he fired a lot of people. He then terrified the rest so that they were afraid to go against him. So even if there wasn't anything he could have really done, you know, he puts people in fear of their careers, their jobs. They're disoriented. It happens so quickly, they don't know what to do. So attacking the bureaucracy, making everybody either quit, be fired, or in fear was a big chunk of what he did. And that's what we're seeing. The other thing he did was he defunded everybody who could possibly push back. Okay. So in the US Government, it's been kind of random defunding of everybody. Okay. That was not, shall we say, precision guided. Okay. But what I'm expecting to come is more systematic defunding of all the places where they think the opposition will come from. So let me tell you what happened in Hungary. It turns out when I was living in Budapest, there were 12 daily newspapers in the city of 3 million people. It was wonderful. You could read papers ranging from left to right to, you know, wonderful objective journalism, all kinds of stuff. But it was unsustainable. It turns out you got 12 daily newspapers because most of their funding came from state advertising. As soon as Orban came to power, he cut the funding to cut all the advertising to all the papers and actually all the TV stations and radio stations that actually had been critical of his party. And it turns out they started to fail economically. What happens, his oligarchs swept in, bought up the media they wanted or they let them fail. And when the rest of Europe looked at this, because this is all happening in the European Union, they're supposed to be a club of democracies. Orban says, oh, well, you know, it's just the market, they can't sustain themselves. And this is when newspapers are failing all over the world for financial reasons. Didn't look like he'd done anything. Defunds the press, he defunds the civil sector. Turns out a lot of the civil society groups relied on government grants. He defunded the universities. Turns out they were all publicly funded. He just went systematically through all the places where the opposition might have been able to mobilize civil society against him and they all ran out of money. Here we go.

Margaret Talbot (17:07)

Here we go. This is so bone chillingly evocative of everything we are seeing right out the shoot. I wonder if, before we go any further, I'm going to ask you to do that which is impossible and I've heard you resist doing it on other interviews. But I think one of the things, and you and I have been in these conversations, Kim, is that people, particularly Americans, notion of what constitutes quote, unquote, democracy is incredibly mushy and incredibly incompetent. And as we learned in the last election, it was almost impossible to campaign on it. It was almost impossible to explain what was at stake, although I believe the Harris campaign tried. I would love for you to tell me in three crisp sentences what your working definition of a democracy is for people who I think sometimes think it means as long as I go get to check a box, we're in a democracy.

Kim Lane Scheppele (18:07)

Yeah. So everyone's definitions of democracy tend to be backward looking. Was the current government elected in an election that was kind of more or less free and fair? My definition is forward looking. Is the next election going to be free and fair and the one after that? So I think that we still, of course, want democracy by the people. People have to be able to throw the bums out, rotate power. But if you have a system that is set up in such a way that power does not rotate anymore, to me, it doesn't matter if it was an elected government that created that structure or a dictator with tanks in the streets. Democracy is about future free and fair elections and not just about the last one.

Margaret Talbot (18:48)

And of course, the companion question, Kim, is because we in the press have spent the last eight years fighting over whether you can say autocracy, totalitarianism, fascism. What is your working definition of authoritarianism or autocracy or whatever it is the word is that you feel we're sliding into?

Kim Lane Scheppele (19:09)

Yeah. So I've been using autocracy partly because we have an association about authoritarianism from the 20th century where, you know, it's the Hitler, Stalin model of exactly how these governments work. And authoritarianism immediately gets mixed up with ideology. You know, Hitler was a fascist, Stalin was a communist. And so you expect a leader to come forward with some coherent ideology that then results in the consolidation of power. So I think of authoritarianism as the consolidation of power plus ideology. What's so interesting now about these new autocrats is that most of them don't have a lot of ideology. You know, Trump is very transactional. You ask him what he thinks, and it depends on who he talked to. If you try to define it as a kind of coherent political theory, there is not much there. And so a lot of people kind of feel, given that They've got these 20th century models in mind, that as long as there's no ideology that he's fighting for, it's not going to get that dangerous in the long haul. So that's why I back into this concept of autocracy. And what I mean by autocracy is a government in which power no longer rotates and in which it's no longer accountable to anybody outside the executive branch. Again, very simple, because you can complicate it with all kinds of things. But ultimately, the rotation of power through free and fair elections is the thing that makes democracy, and it's possible to capture the institutions of a democratic state so that you no longer have that. Now, of course, what's interesting is that all these autocrats go on having elections, even in Hungary. After Orban captured the 2014 election, which was the first election after he had consolidated power, the election monitors came in and gave it more or less a clean bill of health, because the way he changed the election law so that he wouldn't lose was so incredibly complicated that the election monitors couldn't figure it out. And the political opposition trying to win the election didn't realize the whole thing was just rigged against them. There was no way they could win. And so it took until the 2018 election. The European Parliament in 2020 finally said, Hungary is no longer a democracy. It took 10 years for Europe to catch up to the fact that power was no longer capable of rotation in Hungary. So that's what you got to keep your eye on.

Margaret Talbot (21:30)

More in a moment with Kim Lane Shepley.

Kim Lane Scheppele (21:35)

I've listened to every episode of the gabfest since 2009, and then I went back and listened to the earlier ones.

David Plotz (21:41)

Hey, Slate listeners, David Plots here, one of the hosts of the Political gabfest. And yes, that was superfan Stephen Colbert. You just heard this year we are celebrating 20 years we've been around since George W. Bush. Bush was in office, before the iPhone existed, back when people had to explain what a podcast even was. And to commemorate this anniversary, we hosted a really special live show in New York City featuring Colbert. He sang, he answered listener conundrums.

Kim Lane Scheppele (22:08)

I have a harrowing follow up question. Is he taking over my body? For those 24 hours.

David Plotz (22:17)

He had lots of of thoughts on everything from Trump and Taylor Swift to museum heists and what pastry he'd be reincarnated as. And then he said something that will either shock you or make perfect sense, depending on how well you know us.

Kim Lane Scheppele (22:29)

Well, I think he'd be, I think he'd be more likely to be a dictator than the rest of us.

David Plotz (22:35)

So which gabfest host does Stephen Colbert think would make the best dictator? Listen to our latest episode now or watch the full video on Slate's YouTube page at YouTube.com slate to find out.

Margaret Talbot (22:47)

Let's return now to my conversation with Kim Lane Shepley. So, Kim, I think you've said this already, but I want to pull at it a little more, which is those of us who are looking to tanks on the street, you know, we're watching an old black and white movie. That's not how this happens anymore. What we want to be afraid of, I think you said this somewhere, is lawyers on the streets. And one of the frightening things I think is not just the ways in which Viktor Orban effectuated his plans with just teams of lawyers and law firms and legal advisors, including, you know, legal advisors who he shares with Trump, but that it was not a coup so much as a complete, as you've said, capturing of the machinery of the legal system in order to sort of hollow out checks and balances. And I think as a definitional matter, the reason that's so intriguing to me, and I think it will be hard for listeners to understand, is that everything looks lawful as long as a lawyer's doing it right, as long as a court is putting its imprimeter on it, then it looks like how can this possibly be illegal? And I think that you have this lovely line, I've heard you say law is the way the state talks to itself, but that doesn't mean that law is lawful. Right. It means that law goes at some point tilts from being the solution into the problem. And I know that's a really big question, but it feels as though we have this very American notion that as long as, you know, these executive orders come down and we're like, is that legal? Is that not legal? You know, is. Is there a statute? Is there not a statute? As though the law alone can cab in lawlessness.

Kim Lane Scheppele (24:34)

Exactly. So this is where I'm going back and reading a lot of stuff from the 1940s, you know, so after the Second World War, when everyone's trying to figure out, how do we not let that happen again, there was a big debate among lawyers, including among American lawyers. And what they were saying was, you know, Hitler came to power lawfully, Stalin did a lot of things by law. So the question was, what was wrong with that picture? Right? And was it enough that something was formally legal in the sense of it was passed and enacted according to the legal procedures you had in place at the time? And there were a bunch of people who said, well, yes, and we'll fix that by putting a Constitution on top of it all. And then you have a standard to judge legality. Okay, so what that didn't anticipate is, you know, and actually, most of the world's constitutions date till after the Second World War. So we're unusual in having a very old Constitution. We'd gotten there first. But you look at U.S. constitutional law, and it explodes after World War II. A lot of constitutional protections we have in place are much newer than the Constitution itself. But then what happened, starting in the US starting really in the 1970s into the 80s, was that people who were determined. And this movement, by the way, to create a kind of what I call autocratic legalism in the United States started really back in the 70s as a set of conservative lawyers started looking at the Constitution and saying, gee, you know, Constitution can be interpretable. We can make it mean something else by coming up with historical arguments, with textual arguments, with, off the top of our head arguments that make the Constitution say something that justifies what we're doing with this other law. So that was the protection. New countries like Nazi Germany after the war, new Constitution, strong constitutional court. Let's do this to prevent law from being used in this way again. But in the US We've had a long process of renegotiating what the Constitution is capable of meaning. And for me, I mean, I must admit, I stopped teaching us constitutional law before I came to Princeton. I was a law professor. I still have that hat on much of the time. I stopped teaching constitutional law after Bush v. Gore, because I'm afraid I've seen this movie before, okay? But I think the moment of truth for American law professors and Americans looking at the interpretability of our Constitution was the immunity decision. In this past term, who ever thought. Nobody had ever thought, as all the brief said. Even Trump's lawyers didn't make the argument that presidential immunity from criminal violations would extend as far as that court said. And what you then realize is that we have not only a captured Supreme Court, but we also have a captured Constitution. That was the thing that was supposed to prevent law from being used in this autocratic manner. And between decades of legal scholarship that has said, gee, we can make, I don't know, the Fourth Amendment sound like a recipe for banana bread if we try hard enough. Right. We just need a little interpretive, you know, a little history, a little textualism, whatever. This has now meant that the anchor that was supposed to prevent this from happening in the US Is now not here. And again, this is exactly what happened in Russia. This was what happened in Hungary. In Hungary, by the way, Orban just rewrote the Constitution after one year. That happened in Venezuela, that happened in Ecuador, eventually Erdogan in Turkey did this, rewrote the Constitution. That was after the Second World War. That was supposed to be the guarantor that this wouldn't happen. And now constitutional lawyers have gotten so clever that they've worked out ways to prevent even that law from preventing the consolidation of executive power without checks.

Margaret Talbot (28:33)

One of the things that I noted in your work is that the tendency is you take over the executive branch and then you capture the court in the United States. As you said up top, that was the one thing Donald Trump did really well in his first term. Everything else was sort of, you know, slipping on pudding. But, like, he really kind of nailed it in terms of capturing the Supreme Court, and with the help of Mitch McConnell, with the help of the conservative legal movement. And in so doing, we have this funny loop where the court, with the immunity decision and the Colorado decision and its capacious view of executive power, in some sense, before Donald Trump comes into office, the court is already in place. And it's very different and quite scary because I think it leads to my impression, from the way we are talking about this internally in the United States, not to worry, not to worry, because the court is going to be the bulwark against the authoritarian impulses, you're saying. And then you get into these nuanced discussions. I had one this week, an important discussion with Steve Vladek about what the Court's gonna do with impoundment. But it is a conversation that in some sense legitimizes that the Court will be acting as a check on the executive. Except the Court in some sense helped to construct this unbounded executive.

Kim Lane Scheppele (29:56)

Exactly. So on one hand, we can't give up on law, right? Because, I mean, you can't give up on law. Law also is a weapon in the hands of the opposition. And the entire judiciary is not captured yet. We've already seen some stays of some really off the wall executive orders. So, you know, the courts are not hopeless or helpless. That said, it is a hierarchy. And eventually all of these questions are going to wind up at the Supreme Court. And I think people for whom the Court has been the horizon of what law means in the US have already been shaken up badly and yet still have faith, partly because we don't know what else to do. Right? I mean, that's our professional capacity. That's what we teach our students. We still have. What's everybody doing standing up, teaching Constitutional law this semester? Right. You think that the thing that you've known as a solid set of rules will still be there, at least in part. But let me tell you, I used to work when I was in Hungary, I actually worked at the Constitutional Court of Hungary. And they developed the most remarkable case law. I mean, they'd just been through dictatorship, so they understood what it was. And the Court made all these decisions that would make it possible for dictatorship never to come back again. So what did Viktor Orban do? The first thing out of the box, he captures the Constitutional Court three years in, when he's got all his judges in line, and now they're going to do what he says. He passes a constitutional amendment because he also has a constitutional majority in the Parliament that simply cancels the jurisprudence of the constitutional court from 1990 to 2012. And all those cases we all worked on so hard all those years went poof into the air. Okay, now it probably won't happen exactly that way here, but when you've got a case law that can be updated by a court that's been captured in theory, actually none of that is stable. And so what I'm trying to get everybody for whom the Supreme Court is the primary focus of what they do, to say, well, what if that's not so solid anymore? It's like leaning against a wall and suddenly you discover the wall collapses. I also worked at the Russian Constitutional Court where that happened. Okay, so when you work in a couple of these countries, like that to realize constitutional law cannot be left only to the courts. Okay, so then what do we do? So, you know, one thing that some of the Hungarians did for a while, this happened in Poland after the court was captured. Some of the constitutional lawyers then started doing things like writing the opinion the court should have written if the old law was still in place, and then acting like that opinion was real. It's a lot of work for people who are going to then construct an entirely alternative jurisprudence. But the other thing you do is you take the Constitution to the streets and you don't lean on the technical, formal arguments that we're all used to making as constitutional law professors. Then you have to lean into the popular conception of what law is. And so for this, I want to quote my mother, if I can. So my mother was not an expert in constitutional law. And my family was all at that time Republican. And my parents loved Ronald Reagan. And when Robert Bork was nominated for the Supreme Court, my mother was like glued to the hearings. And she called me up one night and she said, I don't get it. He just said, the right to marital privacy is not in the Constitution. And so I tried to explain to her, like, if you look at the language, that's what he meant. It wasn't. She said, he's just wrong. I know what's in the Constitution and I know the right to marital privacy is in the Constitution. Okay? That's the thing we have to work on. A lot of people think they know and we need to encourage that because this court might say it's all not there.

Margaret Talbot (33:56)

It's so important that as we're taping, we're already seeing that Idaho is trying to overturn Obergefell. Right. Marriage equality. I mean, there is a sense that the court is now gonna do whatever we ask it to do. And I think this follow on sense that once they've done that, that was lawful. And I like you're a little bit speaking in the key of Tim Snyder, who was on the show recently, who's been really urging that we have a sort of parliamentary shadow government and that we have a really robust, meaningful. Like, that's not how this is done. That is not what the Constitution says. That's what writing those sort of alternative opinions means. I do want to ask you something, because part of what everybody is really, I think, traumatized by right now, except for the people who are delighted by it, is the speed at which everything has happened. I think that even though in the first Trump era we were all grappling with the Muslim ban. We weren't grappling with this sort of rapid fire machine gun. You're just trying to absorb one thing and then the next thing comes. You've done a lot of thinking, Kim, about whether the sort of reverter to authoritarianism happens quickly or slowly. And I think you've said, and you've said it again on the show. The first, first Trump term was kind of not even just really a successful feinted authoritarianism because he didn't mobilize the law correctly. He left, you know, positions open. He was more interested in performing monarchy than actually entrenching it last time. But I know you've said that there's sort of like fast and slow autocracy. Fast autocracy. You've described what happened in Orban, Hungary, slower creeping autocracy in Turkey and other places is the speed at which we are seeing an effort to consolidate power in the executive branch and an effort to rewrite law that you just don't like. Does that reflect to you something that looks more like fast autocracy?

Kim Lane Scheppele (36:05)

Oh, yeah, this is definitely fast autocracy. Okay, so again, the models here are Hungary and Venezuela and Ecuador. And so this is where in all three cases, the executives were able to rewrite the entire constitution in the first year. Okay. Now we have this impossible amendment process. So we're not going to rewrite the constitution by having a constituent assembly or having some kind of drafting process. We're going to do it through the courts. Right? That's the constituent assembly that we happen to have on tap. So the question is whether the Supreme Court is going to go along with this. And again, let me just say something else about these courts. Because if you look at how all these autocracies function, even the captured Constitutional court in Poland or the one in Hungary or the one in Russia occasionally rule against the government. And they do that. Sometimes the government goes too far, sometimes the government actually does something and then it regrets it, so it wants to walk it back. So it gets the court to nullify it. And then they say, you see, we have an independent court, okay? So we cannot be distracted by the fact that the opposition here is going to win some cases at the Supreme Court. The question is which cases they win. And the thing to keep our eye on if we're worried about autocracy is the executive power caseload. That's really going to be the place where I think we have to keep our eyes peeled. So this is very fast. And in this country, it's not going to Happen through. Although there is this, you know, this convention of states that may just happen. I mean, who knows, right? This calling a constituent assembly is not completely out of the question here, but I think it's a rather remote possibility. Instead, we'll have that. So, yeah, fast autocracy. But there's a third. So I have a, you know, autocracy, fast, autocracy, slow. Here's the third category that I'm also worried about in the US which is what I call autocracy on the fence. Okay? Now, this is India, you know, for example, and this is Brazil. This may be the US where you get an autocrat that comes to power, that compromises some institutions. So Trump, Trump 1 captures the Supreme Court. He comes back as Trump 2. Okay? We're still living with his captured Supreme Court, which, as your podcast has amply demonstrated, got in the way of tons of things that Biden was trying to do, and particularly stuff that would have made Biden look like a successful president to the general public. You know, in other words, they specifically went after the things that would have made people's lives better in the short term. Student loans and, you know, all these kinds of things. Okay? So basically, you know, they prevented Biden from governing, and they prevented Biden from really rolling back. You know, Biden came in and thought, if I act normal, everything will be fine. Okay? Which also, by the way, doesn't work. I hope the Democratic Party has learned that lesson by now. But still, you know, so Biden couldn't govern. So that meant that it was much more likely that Trump would come back. We're having some of the same problem in Brazil. Bolsonaro broke just enough that Lula can't really govern. So then Bolsonaro may come back. Now he won't come back because the Supreme Court's disqualified him, but his party, one of his loyalists, may come back in the next election. And then what happens is you get wave two of autocratic push. So you get slightly worse, maybe a lot worse. Maybe you don't get completely worse again. The US Government is famously complicated. We have federalism. You can't capture everything all at once. There's pushback and whatever. So maybe you only capture a few more things this time. Then you get an election in which people say, geez, don't want to go through that again. And whoever is running against Trump or his surrogate the next time will win, but still can't govern because more things have been captured. So then they fail because they can't govern. Then you get the autocrat or his party back again. So it may take several rounds. I say autocracy on the fence, because even if you can get rid of the autocrat, you never can govern as a Democrat, I mean, small d Democrat ever again because some of the institutions are compromised. And so it's like an up and down and up and down around a declining line. And that's what's been happening in the U.S. i would say, ever since Watergate. This is not new. So there we are.

Margaret Talbot (40:22)

We're going to take a short break.

Kim Lane Scheppele (40:26)

President Trump doesn't know what to do with courage, but we do. I'm Sky Perryman, president and CEO of Democracy Forward. Since Inauguration Day, our lawyers have been fighting for people and communities challenging the Trump Vance administration's unlawful agenda. We've won legal victories already. But this fight isn't just ours. It belongs to the people. And we know the cost of silence is greater than the cost of action. So join us, add your courage to the cause@democracyforward.org.

Margaret Talbot (40:55)

And we are back with Kim Lane Shepley. Kim, I wanna take a moment to reflect on a piece you had in the Contrarian this week. It gave me pause because one of the things that you are talking about is the role of sort of performative cruelty in an autocracy. And, you know, we started this conversation by saying right now we are seeing radical performative cruelty directed at trans kids, directed at transgender service members, directed at immigrants, migrants, asylum seekers. There's a real sort of like ebullient joy in bringing people low. And I want to talk about it, if I can, through the lens of a lot of your work has been on gender. Both this question of why so much of this is about trans rights, is about women, is about others, xenophobia and race and how that works in this general framework, not just of authoritarianism, but also of what you do to a population in order to instill fear.

Kim Lane Scheppele (42:13)

Yeah. So it's such a good question. And gender's very much on the line. I should say that one of the odd elements of my background is that when I was l living in Hungary, I was invited to start the gender studies department at Central European University. And Central European University, as anyone who's been following this story might know, was pushed out of Hungary by Viktor Orban, and he took particular umbrage at the gender department. And he also abolished gender studies everywhere in the country. So, you know, this idea that you go after the very idea that gender is flexible, that gender isn't just a binary biological category, has obviously gotten you know, this is really right wing populists everywhere are hitting on this note, but I think it's a more general note. Obviously, that's one thing, but I think we shouldn't forget the enormous viciousness that's been aimed at whatever remnants are left of what we've called affirmative action, or what we called equity. Just raising up people who never before had equal rights, which includes women, which includes people of color, which includes trans people, and people whose gender identity has not fit a binary. But one of the other pieces of cruelty that I was so struck by this week was the executive order on the death penalty, which actually says not only. I mean, Biden commuted the death sentences of a lot of people on death row. He didn't let them out. They still serve life sentences. But Trump had done this, like execution palooza on the way out the door last time, trying to get through the entire federal death row kind of on a schedule because he liked it, right? So Biden took that out of his hands for all but a few of the federal death row defendants. And in the new executive order, it instructs the Attorney General to ensure that the people whose sentences Biden commuted are imprisoned under the harshest conditions possible. Okay, that's just. I mean, the guys are in jail for life, right? I mean, are you going to put them in solitary confinement for life? Are you going to. I mean, what can. Anyway, so it's gratuitous cruelty against so many different populations. Okay, so what is this doing? I think a couple things. One is that the heroes to Trump and his ilk are the people who have felt constrained by having to be civil to all the people with whom they disagree or people with whom they now actually have to compete. And so it comes up sometimes in free speech language, like, I don't want to have to not, you know, call you by whatever name would be so deeply insulting. I want to be able to speak freely, which usually means putting people down and threatening them, bullying them. This is about removing all restraints. It's like the legal permission for mansplaining writ large. Right. It's just these guys are going to dominate the horizon and do whatever they want. That's the point. This is also Trump. He doesn't want any constraints. He wants to be able to sign with a pen and do whatever he wants. Right. It's all about getting out from under that. And so how do you do that? You remove the rights from the people who have demanded civility and equal treatment, because that has been felt as oppression by the people who used to be able to do anything they wanted. Right? So I think that's why these things are targeted. But there's another thing, too, which is the performative cruelty is designed to accomplish two things. One is it's designed to develop scapegoats and people to blame, and to also create distractions from the consolidation of executive power going on with things like the restructuring of the executive office of the president, which doesn't seem as important because it doesn't leave bodies buried in the streets yet. Okay, so it's a distraction. Important, but a distraction. But here's the second thing. It puts everybody else in fear. Because if Trump can do this to anybody he pulls out of a lineup, anybody he pulls out of his bag of tricks, it means it can happen to federal workers. It means it can happen to people who are here legally who may not have proof of citizenship because they've never gotten a passport. It extends far beyond the target groups to people that are now really running scared because they don't know how far the purge will go. It's so arbitrary. The list of people we just mentioned, that it could apply to anybody. It's the arbitrariness of it that creates fear. And a population in fear is a population that won't rise up against him. It's a way of neutralizing and diffusing the civil opposition, the civic opposition that we've been talking about, because that's what you've got left. If he's captured the institutions and he's working to capture the civil space, the civil society space, as well as the governmental institution space.

Margaret Talbot (47:02)

I think one of the lessons I took from this week, and I'm really just thinking aloud, is that that vaporous, incomprehensible thing called government and democracy, the thing that the Supreme Court has been trashing, you know, some of the justices on the court, whether it's talk of the deep state or, you know, the mindless functionaries at the epa. It felt as though the American public sort of surged into the void this week. I mean, I said early on I wasn't sure that we understood what government means, what democracy means. It's easy to hate it when you're getting a parking ticket. But it felt to me, tell me if I'm wrong, that one of the lessons of this week is that, like, oh, I actually really. I mean, as we're talking, like, I need the FAA to work. I need my roads and my bridges. I need the cancer study to go forward. I felt that government became really visible to the American people this Week in a way that it hadn't be. And they fought for it. And I think I want to say as a corollary, one of the things you always say about populism is that people love populism, but they also really like functioning government and democracy. Those things are not. You cannot sort of say that just because people elect populists who hate government. They hate government. They just don't know the mission.

Kim Lane Scheppele (48:21)

Exactly. And so what opinion poll after opinion poll shows is that the people who elect populous want change, but they don't want chaos and they don't want the services that they count on to fall apart. Exactly. There's a wonderful book by my former colleague Larry Bartels that's called Democracy Erodes from the Top. And it's a book about Europe where there's very good opinion data on this. And what he shows two countries, Hungary and now Poland, Poland's trying to make a comeback, really fell to anti democratic forces. And what he showed in the far right's rising all over the place, there was no demand for it. What he shows in the opinion polls is that people wanted government to be responsive. They didn't want it to become a dictatorship. In fact, especially in the countries that elected these autocratic governments, there was the biggest. I mean, Hungary had the largest percentage of the population in support of judicial independence being the most crucial feature of democracy than anywhere else in Europe. And the first thing they get is captured courts. Right. So people are not voting for this. I think a mandate is not a mandate for removing democracy or removing checks and balances on government. Yes, government is cumbersome, but that's how we ensure it's accountable. And sometimes dictators make mistakes, autocrats make mistakes. And I think that probably the best thing for galvanizing the opposition was exactly that OMB memo that said all funds are frozen and suddenly you've got daycare centers all over the country saying do we have to close our doors? You've got meals on wheels suddenly not being able to deliver meals to seniors. We've got a plane crash in Washington D.C. the first civilian plane crash in what, 15 years. And the question is, this is right after he fires the head of the Federal Aviation Authority. This is right after he says hiring frees on air traffic controllers probably too quick to have that be the cause. But you wonder if the people who work in these jobs that are threatened are now have half an eye on what's going to happen to me personally, I mean, we have no idea about the plane crash, but there are going to be things that start happening like that when government stops suddenly, pandemics that we have no advance warning of when the whole public health system has been disabled. So all of that is gonna make people realize that it's one thing to demonize a thing called the deep state whose exact contours they're not real sure of, and quite another thing to suddenly yank all the things that have made our lives permissible, tolerable, and better all at once. So what you hope is that that makes people rise up.

Margaret Talbot (51:12)

Kim, I've kept you far longer than I pledged to keep you, but I wanna end on this question. It is well known in the world of autocracy and authoritarianism that it's really hard to claw it back once you've lost it. And I'm hearing you say, and I think I agree, we are well into having lost something fundamental. There are a lot of people out there who are listening to this show, trying to decide what to do, and I would love to hear your menu. I think we've asked several guests of what the mission is not for. I mean, yes, by all means, support your friends who are government workers, government lawyers, people dependent on government grants, folks who are scared at universities. Stipulated. What are you telling people to do? What worked in Poland, what has worked in places that are clawing it back? What's the mission for listeners who really don't want to give up, but aren't. Aren't sure that everything hasn't been lost already?

Kim Lane Scheppele (52:16)

So, first of all, it's important to keep toeholds that you can use to leverage into more power for the opposition. And by toeholds, I mean civil sector groups, I mean state governments and blue states. I mean, anything that's not yet been captured, we should lean into state constitutional law. You know, we should lean into the parts of the. The government that are going to not go down without a fight. We need to hold up and look at where can public outrage at least gum up the works? Everything that this administration does now that is bringing down democracy and causing pain should be met with friction. You may not be able to stop it, but you can slow it down. So again, if I can tell it a small story, When I moved into New York city in the 1970s, high crime rates, everybody was, you know, really very concerned. It was a. It was the height of dangerous New York. And I moved into an apartment on the Upper west side. And the first thing I did, like everybody else, was to install three more deadbolts on my door. So while the guy's installing the Deadbolts. I said to him, well, is this really going to keep out somebody? And he said, actually, he said, no. He said, really talented burglars know how to break through all the deadbolts. What you're doing is you're slowing them down until possibly something else intervenes. Okay, now this is my lesson for everybody. You're not going to look at things saying, can I win in the end? You're looking at the much nearer term, how do we slow it down? And so litigation may not result in a victory at the Supreme Court, but you still need to litigate just to slow it down. It may be that the local office near you says that they've run out of money. You do sit ins just to create friction. You want to slow down the autocratic power grab. Because we do have midterm elections coming up. We do have state governors who are finding ways to work together to build a kind of daisy chain of resilience that may be able to stand up to the federal government. So anything you can do to slow it down in the meantime, time is the thing that's going to keep you safe in the long run. And so it's just generalizing the lessons from what keeps you safe personally. Think about how to generalize that to how can you do that at state level. And small things that gum up the works. Resistance, not letting it pass without a fight. One of my friends just says, you know, subscribe to the media that are standing up to this. Put your weight and your money behind the institutions that are throwing sand in the gears. And that's the basic thing that you can do. We're all now just trying to slow it down, stop it in its tracks. Think of yourself as being like that guy in Tiananmen Square with the shopping bags in front of the tank. Whatever it is that you can do personally to just slow it down, just stop it locally, just do it.

Margaret Talbot (55:26)

And maybe the gloss I would add, although that was so eloquent, I'm reluctant to gloss, but it is some version of to keep your heart soft so that you can see suffering for what it is.

Kim Lane Scheppele (55:37)

Absolutely.

Margaret Talbot (55:38)

And to not be alone. Because I think that's the thing that is fearsome right now, is sitting on your phone and spiraling. There are so many people doing so much phenomenal work. Kim Lane Shepley is the Lawrence S. Rockefeller professor of Sociology and International affairs in the Princeton School of Public and International affairs and the University center for Human Values at Princeton University. Her specialty is the sociology of law, and her research examines the rise and fall of Constitutional Governments. Her upcoming book is called Destroying Democracy by Law. It is very much of this moment that the charge I think today is to not allow democracy to be destroyed by something that styles itself as the law. Kim, thank you so very much. You were exactly the person I needed to hear from this week.

Kim Lane Scheppele (56:28)

Well, thank you. And we have to have some hope, right? Because and we have to have each other. So thanks for doing the podcast. It creates a community of strength.

Margaret Talbot (56:41)

That's all for this episode. Thank you so much for listening. Thank you for sticking with us this past year. And a special thank you thanks to those of you who found us in the past 12 months and joined our ranks. Thanks also for your letters and your questions. They are grist for the mill, both in your words of encouragement and solidarity. And because you ask such smart and clarifying questions. Please do keep them coming. We are always reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or rate us and review us on Apple Podcasts. Don't miss today's Amicus bonus episode, the one you've all been waiting for. Amicus annual Worst of SCOTUS 2025 Edition. Mark Joseph Stern and I will exclusively unveil the person or moment our plus listeners decided was the rock bottom of the past 12 months at the High Court while sharing our personal picks for the lowest of the low. Our bonus episodes are for Slate plus members only. Go to slate.comamicus plus to join us. You can also subscribe directly from the Amicus show page on Apple Podcasts and Spotify. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort. Hilary Fry is Lynn Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our senior director of Operations. We'll be back with another episode of Amicus next week. Until then, hang on in there.