When Is Extremism in Defense of Liberty No Longer a Vice for Those Who Oppose Fascism?

The sheer brazenness of the Supreme Court's hyper-conservative majority continues to set new lows.  Yesterday, Professor Segall laid out a series of examples showing that this is not a new turn in 2024 or even in the Trump era but goes back eighteen years to the beginning of the Roberts Court (I would suggest much earlier than that), which has been utterly lawless in its push for outcomes that serve the purposes of the Republican Party.  He promises a book-length version of yesterday's analysis, and he will have plenty of examples from which to choose.

There is surely no sense in trying to create a metric for ranking which Court decisions are worse than the others, but some decisions will stand the test of time for being particularly awful (Dobbs being the most obvious candidate, but the Muslim ban case is up there, along with Shelby County).  Even though the Court has not yet even issued its ruling in the presidential immunity case, the oral arguments alone portend something truly horrifying.  Professor Dorf's summary and response to last week's argument captured the insanity of it all, making it unnecessary for me to do so here.

Instead, I want to use the question/argument/theory advanced by the most extreme members of the Court during that oral argument as a starting point from which to address an age-old question: When should people who understand the essential purpose of the rule of law reluctantly decide that it is time to do whatever is necessary to prevent a true catastrophe?

In the current situation facing the US and the world, such a catastrophe would involve Donald Trump returning to the White House and turning the US into a fascist state.  Thankfully, even brutal and pitiless dictatorships do not last forever (Franco's Spain, Peronist Argentina, Pinochet's Chile, along with the obvious examples from World War II), but I for one am hoping that my great-grandchildren will not be the next generation of Americans to enjoy something resembling a free democracy.

Why is that question prompted by the oral argument in the immunity case?  Because the Alito-led faction pulled a breathtakingly cynical move, saying that in this case history and tradition do not matter, nor are they constrained by judicial minimalism, because they need to "writ[e] a rule for the ages."  And why does a rule for the ages not take into account the fact that the country has gotten along for 240 years without presidents worrying that they will be the subject of political retribution?  Because things have changed!

Trump claims wrongly that he is being politically persecuted and then says openly that he will persecute his political enemies if he ever has the chance, and the Court's fascist-curious faction says: "You know what?  From now on, every President will need to worry about being jailed or worse after leaving office, so we need to craft a rule to prevent that from happening -- even though it is our party that has changed the playing field."  So Trump could very well benefit from a ruling that excuses his crimes, because his reaction to being criminally prosecuted could chill future presidents from doing ... something arguably not bad, I guess.

This means that the pro-Trump people can simply ignore the fact that American Presidents have never shown any concern that they will be criminally charged when they leave office.  But what about the point (made many times by a wide variety of commentators) that a ruling for Trump could give President Biden a legal shield to keep himself in office by committing crimes?  Even if the Court puts together a majority opinion that somehow threads the needle to say that Trump cannot be prosecuted without giving the green light to Dark Brandon, what might Biden be tempted to do if he ever faces a situation -- via election or a post-election coup (of either the bloodless or bloody sort) -- in which Trump is on the precipice of returning to power?

To put the point more bluntly: If an extremist is about to become President, to what extremes should the non-extremists go to prevent that from happening?

My column earlier this week implicitly raised this question by asking what Canadians might do to prevent a US-style fascist movement from upending the rule of law up here.  I noted the commentator Stephen Marche's argument that Justin Trudeau's center-left government is too timid and technocratic, which is allowing the Canadian right to make inroads that might do serious damage to Canada's pluralist political culture.

Although I did not make the connection in that column, one way to translate Marche's argument is that Trudeau and his party suffer from the same kind of timidity that US Democrats too often display.  Whether we call it "defensive crouch liberalism," "refusal to play hardball," "bringing a banana to a gunfight," or anything else, the idea is simple: "Why does our side play too nice, even when the other side has made it clear that it has no limits?"

Even in the course of endorsing Marche's overall assessment of Trudeau's failings, I shied away (to put it mildly) from his assertion that "the liberal order demands forceful and practical — and occasionally ugly — defense."  I argued that Trudeau could certainly be more forceful without going to the extremes that Marche ascribed to Pierre Trudeau (the current Prime Minister's father, who was PM from 1968 through 1984, with a one-year hiatus in 1979-80).  Marche had noted that, in response to political violence, Trudeau pere "suspend[ed] civil liberties and [brought] in the military. When asked by journalists how far he was willing to go, he said, 'Just watch me.'"

Again, my visceral response to that assertion was negative -- "Whoa," I wrote, which is nothing if not visceral -- but should it have been? After all, my name is on more than one piece of legal scholarship and many pieces of public commentary (most of it co-authored with Professor Dorf) invoking Abraham Lincoln's famous "all the laws but one" argument, which he used to justify suspending the writ of habeas corpus to defend the nation.  If I can approve of Lincoln doing such a thing, why would I resist if Trudeau (either one) did the same?

The short answer is, of course, that Lincoln's argument is and has always been seen as an argument of last resort.  As a matter of original motivation, there is no reason to think that Lincoln woke up one morning in, say, 1845 and said: "Mary, my dear, when I get a chance, I'd love to suspend the Great Writ."  Instead, when faced with a civil war, he made a decision that he surely never wanted to make.

All of which is well and good, but it does not answer the key question: When would the consequences of inaction be so extreme that lawlessness to protect the rule of law is morally justified?  The headline on this column deliberately references Barry Goldwater's defiant claim in the 1964 Republican convention: "Extremism in the defense of liberty is no vice . . . moderation in the pursuit of justice is no virtue."  How difficult is it to draw this line?

Goldwater's over-the-top claim that New Deal liberalism was threatening liberty was just as false as Trump's claims that Biden is the true threat to democracy, both of which are examples of the kind of projection that authoritarian con men use to manipulate people.  Even so, it is true that allowing even one exception at least possibly puts us on a classic slippery slope.  But at some point, extreme responses can become morally justified (if not required).

Which brings us back to President Biden, Prime Minister Trudeau, and everyone else who might find themselves at some point in the uncomfortable position of needing to fight fire with fire.  Must they mimic the lawlessness of those who would seize power by force -- or who, even if "legitimately" elected (Hitler's ascension to power being the most provocative example), have made it clear that they would do all but irreversible harm to the very foundation of constitutional democracy?

We generally do not think about such hypotheticals because, again, US Democrats and their counterparts in other democracies so obviously do not play hardball.  But what if Biden has reason to believe that Trump and his people are about to take power and would then do all of the horrible things that Trump has promised to do?  Even if the Supreme Court has not issued a Trump-friendly ruling in the immunity case, would Biden not feel tempted to "lock him up" and risk the consequences?  Would he do what, say, Trump worshiper Michael Flynn suggested in December 2020 and send out troops to seize voting machines?  Taking the analysis to its logical conclusion, would Biden or a Biden-like leader elsewhere take the ultimate step of declaring martial law in order to prevent someone else from becoming a dictator?

Again, could the consequences of playing by the rules be so bad that it is necessary to become what we despise?

As I noted above, this is an age-old question, which is the reason that terms like "benevolent despot" are familiar to us.  We know that there are chilling dangers created by the temptation to say that the rules are "temporarily" suspended -- again, Trump is a guide here, with Republicans overwhelmingly approving of his promise that he will be a dictator on "Day One," but thereafter "I'm not a dictator, OK?" -- but we also know that there might be times when Marche would be right that "occasionally ugly" force is necessary.

I make no claim to be able to solve such a fundamental question of political philosophy, a solution that has eluded us for centuries.  Instead, I am saying that the Democrats (and possibly soon thereafter Canada's Liberals and their alliance partners in the NDP) should be thinking about whether they will have to face the choice that Lincoln had to face.  Al Gore decided that it was better to play by the rules, even when the rules had been rewritten as part of an unprincipled power grab.  The country survived eight years of Bush/Cheney.

Does Joe Biden believe that we will get lucky again?  I honestly do not know what I would do, but the stakes have never been higher.  I know that Biden hopes not to have to make such a decision, but hope is not a plan.