The Lawyer as Citizen in a Democracy under Stress BY MICHAEL CURRY
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hese are challenging times for democracy. Authoritarianism is on the rise around the globe, and there are disturbing indications that our country is not immune from those influences. A case in point is the sustained attempt in recent years to undermine public confidence in bedrock institutions— most significantly the courts and the press. Corrosive attacks on the legitimacy of opponents, election outcomes, and law enforcement agencies are other tactics straight from the authoritarian’s playbook. Efforts to unfairly restrict or burden the right to vote, which have escalated since the U.S. Supreme Court’s decision in Shelby County v. Holder, 570 U.S. 529 (2013), combined with the longstanding practice of diluting voting rights through gerrymandering, strike at the heart of democracy. It is a sobering fact that, since the end of the Cold War, elected leaders have killed or mortally wounded democratic governance more often than military generals who assume power through force. In recent years, when democracies fail, it is rarely sudden. Such failure usually occurs through the slow but steady subversion of democratic institutions coupled with the erosion of democratic norms that have historically discouraged elected officials and institutions from abusing power. Fortunately, in our country, the judicial branch has largely checked illegal anti-democratic policies, and we can be proud of the indispensable role lawyers have played in challenging laws and actions that undermine democratic rights. Lawyers as advocates and lawyers as judges have been among the most effective guardians of democracy. But what about the lawyer as citizen?
Less than one-half of one percent of the population in the United States has a law license. Think about that. In our nation of laws, only a relative handful of people have formal legal training. This defines the unique role that lawyers have in a democracy based on the rule of law. We understand not just the reach and limits of the law, but the importance of rules and norms and what happens when those are ignored—whether in the courtroom or society. Our legal training, experience, and stature give us a rich understanding of democratic processes and a unique opportunity as citizen-lawyers to contribute—to be champions of a free and fair democratic nation. And we have a special obligation as individuals and as a profession to respond to words and actions that weaken our democracy or violate the norms of civil society. Can we remain silent when, for example, the impartiality or motives of judges are wrongfully impugned; when members of the press are bullied and attacked in an attempt to undermine their credibility and stifle criticism; when voting rights are burdened or diluted for partisan political gain; when patently unconstitutional executive orders or laws are enacted or proposed; or when power is abused and norms are broken in an effort to tilt, if not pack, the courts? Can we stand by while actors, including government officials, generate falsehoods on matters big and small with such regularity that it cripples the marketplace of ideas and normalizes lying and misinformation as an accepted part of the democratic process? Can we fail to worry that these anti-democratic actions diminish our country’s ability to oppose democratic crackdowns in other countries
Lawyers as advocates and lawyers as judges have been among the most effective guardians of democracy. But what about the lawyer as citizen? and send the wrong message to autocrats around the world? In these times, our profession must accept its special obligation to promote democratic values. As lawyers, we have a platform to individually and collectively engage the public through opinion pieces and letters in local and national newspapers, magazines, and online platforms, and to visit with public officials and their staff about laws and policies that impact democratic rights and processes. We can testify at the legislature, at commissions, and at city councils against anti-democratic legislation or ordinances. We can seize the opportunity to speak to neighbors, schools, and civic groups about the importance of engaging in the political process with passion but also with mutual toleration, respect, and restraint. We can lend our support and our voice to candidates who support pro-democracy policies and can vociferously oppose those who do not. We can honor, boost, and assist our fellow lawyers who are on the frontlines defending
our democratic rights in court. We can accept the challenge of running for political office, and encourage and support law students and young lawyers to make room in their lives and practices for public service. At the very least, we can model good citizenship by actively participating in our democratic society and by furthering and assisting others in doing so. To be sure, no single profession or group is charged with or can take credit for resisting attacks on democratic values. But our grounding in the law, which is the superstructure of our democracy, calls upon us as citizen-lawyers AUSTIN LAWYER L AL to be leaders in the A fight. References: Levitsky & Ziblatt, “How Democracies Die” (New York: Crown 2018); Albright, “Fascism—A Warning” (New York: Harper 2018); Meacham, “The Soul of America – The Battle for Our Better Angels” (New York: Random House 2018); Califano, “Our Damaged Democracy” (New York: Touchstone 2018).
Michael Curry is a 1976 graduate of the University of Texas School of Law and a mediator. MAY 2019 | AUSTINLAWYER
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