The worst moment (s) in American law, 2021 | Austin Sarat | Verdict


The worst moment in US law in 2021 was really not a moment at all, but a series of moments that unfolded across the country in red states. All were provoked in the name of law, using legislation and other legal processes in an attempt to hasten the end of democracy.

While there is not much new in my account of these actions and events, I hope, in reporting them here, to speak of a future time when other academics and citizens might be wondering what the hell is going on. did not work in 2021. Institutions, norms and procedures, in some places, have become instruments of anti-democratic forces.

And in other places, including the most important in our nation’s capital, these institutions have not been successfully enlisted to do what is necessary to resist the drift into authoritarianism. 2021 saw the United States know an all too familiar theme in the history of its ascension in other nations and in other times.

To be clear, the worst time of 2021 was not the January 6 uprising, although it was an eyesore in itself. This is what followed the insurgency and ratified it.

During the year, supporters of Donald Trump have turned January 6 in a famous cause and dedicated themselves to appealing to ordinary legislative processes to accomplish what the insurgency failed to do: overthrow American democracy.

As Barton Gellman writing in Atlantic, “January 6 was a practice… The next attempt to overthrow a national election might not be considered a coup. It will be based on subversion more than on violence…. This subversion is carried out using the instruments of law rather than extrajudicial violence.

It unfolded like the republicans in places like Georgia, Texas and Arizona responded to January 6 by not rallying to the cause of democracy. Instead, they mounted campaigns to weaken it.

They have imposed new barriers to voting and unveiled new procedures that promise to politicize election administration and vote counting. These actions came in response to the former president Trump’s big lie on the 2020 presidential election. They were conducted under the spurious banner of “electoral integrity” measures.

This language turns truths into fiction and fiction into fairy tales. It is vaguely reminiscent of a infamous Vietnam era slogan, “We have to burn this village down to save it.”

Republicans seem to think electoral integrity means America should never again have free and fair presidential competition. This means that an election only has integrity if Republicans win.

The laws passed this year are further evidence of the erosion of democratic norms and institutions that has unfolded at a steady pace throughout 2021. They are the product of the fact that the undemocratic forces in this country have learned a lesson in 2020. These forces are determined not to repeat their mistakes in the future.

This is why they make it so methodically difficult for voters, especially voters of color, to vote, by aggressively slaughtering state legislative and congressional constituencies and purging state secretaries and other election officials who refused. to grant Trump his wishes in 2020.

They are aided by a powerful and determined right-wing media ecosystem and by a network of groups, like that of Sidney Powell Defend the Republic, who raise millions to benefit their Stop the Steal fantasy.

An article on Powell’s organization in The Washington Post quoted Matt Masterson, a former senior U.S. cybersecurity official who tracked the integrity of the 2020 elections for the Department of Homeland Security. Masterson said, “The success of Powell’s fundraiser demonstrates one of the reasons so many people continue to spread lies about the 2020 election: it can make money.”

“Business is good,” Masterson continued, “and accountability is low, which means we’ll just see continued use of this manual. Well-meaning people who have been told the elections have been stolen give money that they might not otherwise be able to give. ”

According to opinion polls, authoritarian forces have been very successful in 2021. They have changed the way millions of Americans view this nation’s electoral and political systems.

In November, the Monmouth University survey reported that “about a third (32%) of the American public continue to believe that President Joe Biden won the 2020 election purely because of voter fraud – a number that has not budged in five polls in which Monmouth has posed this question over the past year. Nearly 3 in 4 Republicans (73%) cling to the idea that Biden won through fraud.

The Monmouth poll also revealed a substantial erosion of the popular belief that the system of government is “fundamentally sound”.

He reported that “less than half of all Americans think the American system of government is fundamentally sound and does not require any changes (8%) or some improvements (35%). The combined 43% who think the system is fundamentally sound are almost identical to the 44% who said the same thing shortly after the U.S. Capitol riot in January. Polls in the previous three years had this number higher – between 50% and 55% basically healthy.

The extent of this erosion is evidenced by the result of an “Opinion Research Corporation poll… which showed that confidence in the system was strong at a much higher level in 1980 (62%). “

Our democratic retreat is so great that in August of this year Neil H. Buchanan called the United States a “Dead Democracy Walking”. As he said, “The fatal blows have already been dealt, and we are now waiting for the temporarily conscious victim to succumb to these fatal injuries.”

He outlined the means by which the United States could soon find itself ruled by a “one-party autocracy.”

Buchanan’s list read: “Republicans at the state level could suppress enough votes for their man to win. If they didn’t, they could set up their electoral processes in such a way as to invalidate enough votes to win. If they didn’t, they could ask the legislature to allocate the electoral votes to the Republican. If they didn’t, Congressional Republicans in Washington could refuse to recognize voters in key states.

This list suggests that the assault on democracy led by Trump and his cronies aligns this country for a unprecedented constitutional crisis in 2024 if the former president runs again and loses the election.

And what have the Democrats managed to do to resist the slow coup that has gained momentum during this year?


Joe Manchin has fun, spitting idle, empty and dangerous speeches about bipartisanship. He and Kyrsten Sinema refuse to consider any changes to the Senate rules on filibuster. As a result, 2021 went by without action on federal voting rights law, even the watered-down version of Manchin himself. author.

All the while, President Joe Biden lacks the urgency our current crisis demands.

As Barton Gellman puts it: “Democracy will be put to the test in 2024. A strong and lucid president, faced with such a test, would devote his presidency to responding to it. Biden knows better than I what it looks like when a president fully mobilizes his power and resources to meet a challenge. It doesn’t look like that.

Instead, Biden appears to be taking the advice of people like the Harvard political theorist. Michel sandel. He’s trying to address the root causes of the resentments that Sandel says fueled Trump’s rise.

Showing that government can work and take action to close the yawning gap between the lives of the better-off and the rest of the population can reduce grievances and resentments. Perhaps this is a good step towards strengthening democracy. But it is also a very slow process.

By the time voters get the message and fully register the impact of what Biden hopes to do, they may have no way of recording their gratitude throughout the electoral process as their right to vote is restricted. And they may not stand a chance that their votes will be counted fairly.

As if that wasn’t enough, there have been plenty of other really bad times for the U.S. justice system in 2021.

At the top of this list: the execution of Lisa Montgomery in January during the wave of Trump executions, Texas SB8 passage and the Supreme Court reluctance to block its implementation, the acquittal by Kyle Rittenhouse, the frivolous invocations of executive privilege camouflage the obstruction of the House of Representatives investigation from January 6 to October 28 sloppy execution of John Marion Grant, and the continuing record of police violence against blacks.

If nothing is done to save or resuscitate the democratic institutions of this country, similar outrages are likely to multiply.

As 2021 draws to a close, do we have to think about what will be left of democracy as its institutions are weakened, and access to the ballot box is strewn with other obstacles? And with democracy in jeopardy this year, what will the worst times in American law look like in 2022, 2023 and beyond?


About Author

Comments are closed.