On Lawyer Silence and Authoritarianism – by Susan J. Kohlmann, President

Susan J. Kohlmann

Last week I had the privilege of introducing a New York City Bar Association program called “Lawyer Silence and the Rise of Authoritarianism.” It’s now available on video.

The program began by examining the erosion of the rule of law in Germany in the 1930s, and Argentina and Chile in the 1970s, and contrasted those events with the very different way the rule of law is being eroded around the world today. Yet, as the world learned the very next day, unfortunately the age of the violent coup is not definitively over: overnight the news broke about a plan to overthrow Germany’s government. See Myanmar. See January 6.

But as Professor Kim Lane Scheppele put it in our program, today we don’t see “tanks in the streets” so much as “phalanxes of lawyers,” because “the way democracy dies now is by law.” What scholars call “autocratic legalism” is the insidious, under-the-radar threat on which we lawyers need to focus.

Almost exactly two years ago, in response to the frivolous and bad-faith lawsuits attacking the 2020 presidential election results with false claims of election fraud, the New York City Bar Association called on lawyers to stand up and speak out for the rule of law “because lawyers have been prominently involved in causing the damage to our community’s respect for law and our Constitutional government.” Just last week, a candidate for president of the United States called for the termination of our Constitution.

The latest threat to democracy in America in the legal arena is the Independent State Legislature Theory, a formerly fringe theory that holds that clauses in the U.S. Constitution give authority to state legislatures — unchecked by state courts — regarding federal elections. The City Bar put on a program, co-sponsored by the Brennan Center for Justice, about this two weeks ago that is also available on video.

Speaking out on threats to democracy within the legal system is the first thing the City Bar ever did, when it was founded in 1870 to counter corruption in the judiciary. And through the years, at inflection points throughout history, it has continued to find its voice. Today, we often speak through our Task Force on the Rule of Law, which was formed to respond to the unique threats to democracy in the current era, and our Election Law Committee. Notably, for this program on the need for lawyers to speak up, 14 other City Bar committees stepped up to be co-sponsors.

Indeed, we need all lawyers, as guardians of the rule of law, to be vigilant, to see what’s happening under the radar, and then to stand up and speak out for democracy and the rule of law. We invite lawyers and law students to sign our pledge on voting and the rule of law. And as the 2024 elections approach, we invite you to take action through our Election Protection Opportunities for Lawyers.

I hope you will watch “Lawyer Silence and the Rise of Authoritarianism,” which features an extraordinary panel of experts, including European Parliament Vice President Katarina Barley; Professor and former Special Rapporteur on Torture, United Nations Human Rights Office of the High Commissioner, Juan Mendez; Professor Kim Lane Scheppele; and Professor Diane Orentlicher as moderator. There are important lessons in it for us all.