American law’s worst moment in 2021 was really not one moment at all, but a series of moments that unfolded across the country in red states. All of them were brought about in the name of the law, using legislation and other legal processes with the aim of hastening the end of democracy.
While there is not much new in my accounting of those actions and events, I hope, by chronicling them here, to speak to a future moment when other scholars and citizens might wonder what went wrong in 2021. I mean to highlight the way that legal institutions, norms, and procedures, in some places, have become the instruments of anti-democratic forces.
And in other places, including most importantly our nation’s capital, those institutions haven’t been successfully enlisted to do what is needed to resist the drift toward authoritarianism. 2021 saw the United States experiencing an all-too-familiar theme in the story of its rise in other nations and other times.
To be clear, the worst moment of 2021 was not the January 6 insurrection, though that was a horror in itself. It was what followed the insurrection and ratified it.
Over the year, followers of Donald Trump have turned January 6 into a cause célèbre and devoted themselves to enlisting the ordinary processes of lawmaking to accomplish what the insurrection failed to do: overthrow American democracy.
As Barton Gellman writes in The Atlantic, “January 6 was practice…The next attempt to overthrow a national election may not qualify as a coup. It will rely on subversion more than violence….” That subversion is being carried out using the instruments of law rather than through extra-legal violence.
It unfolded as Republicans in places like Georgia, Texas, and Arizona responded to January 6 not by rallying to democracy’s cause. Instead they mounted campaigns to weaken it.
They imposed new barriers to voting and unveiled new procedures that promise to politicize election administration and vote counting. These actions came in response to former President Trump’s Big Lie about the 2020 presidential election. They were carried out under the disingenuous banner of “election integrity” measures.
That language turns truths into fiction and fiction into fairy tales. It is vaguely reminiscent of an infamous slogan from the Vietnam era, “We’ve got to burn this village to save it.”
Republicans seem to think that election integrity means that America should never again have a free and fair presidential contest. It 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 proceeded apace throughout 2021. They came about because the anti-democratic forces in this country learned a lesson in 2020. Those forces are determined not to repeat their mistakes in the future.
That’s why they are so methodically making it harder for voters, especially voters of color, to cast ballots, aggressively gerrymandering state legislative and congressional districts, and purging the secretaries of state 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 Sidney Powell’s Defending the Republic, that raise millions in aid of their Stop the Steal fantasy.
An article about Powell’s organization in The Washington Post quoted Matt Masterson, a former senior U.S. cybersecurity official who tracked 2020 election integrity for the Department of Homeland Security. Masterson said, “Powell’s fundraising success demonstrates one reason so many people continue to spread falsehoods about the 2020 election: It can bring in cash.”
“Business is good,” Masterson continued “and accountability is low, which means we’re just going to see continued use of this playbook. Well-meaning folks that have been told that the election was stolen are giving out money that they might not otherwise be able to give.”
If public opinion polls are to be believed, authoritarian forces were wildly successful in 2021. They changed the way millions of Americans think about this nation’s electoral and political systems.
In November the Monmouth University Poll reported that “About one-third (32%) of the American public continues to believe that President Joe Biden won the 2020 election only due to voter fraud – a number that has not budged across five polls in which Monmouth asked this question during the past year. Nearly 3 in 4 Republicans (73%) cling to the idea that Biden won through fraud.”
The Monmouth Poll also found a substantial erosion in the popular belief that system of government is “basically sound.”
It reported that “Fewer than half of all Americans believe that the American system of government is basically sound and needs either no changes (8%) or some improvement (35%). The combined 43% who feel the system is basically sound is nearly identical to 44% who said the same shortly after the U.S. Capitol riot in January. Polls over the prior three years had this number higher – between 50% and 55% basically sound.”
The extent of this erosion is evidenced by the result of an “Opinion Research Corporation poll… that showed faith in the system being sound at a significantly higher level in 1980 (62%).”
So great is our democratic backsliding that in August of this year, Neil H. Buchanan labeled the United States, a “Dead Democracy Walking.” As he put it, “The death blows have already been delivered, and we are now waiting for the temporarily conscious victim to succumb to those fatal injuries.”
He laid out ways that the United States could soon find itself governed by a “one party autocracy.”
Buchanan’s list went as follows: “Republicans at the state level could suppress enough votes for their man to win. If they failed to do that, they could set up their electoral processes such that they could invalidate enough votes to win. If they failed to do that, they could have the legislature award the electoral votes to the Republican. If they failed to do that, congressional Republicans in Washington could refuse to recognize key states’ electors.”
That list suggests that the assault on democracy spearheaded by Trump and his cronies is lining this country up for an unprecedented constitutional crisis in 2024 should the former president run again and lose the election.
And what have Democrats succeeded in doing to resist the slow-moving coup that gathered momentum during this year?
Nothing.
Joe Manchin diddles, spewing idle, empty, dangerous talk about bipartisanship. He and Kyrsten Sinema refuse to entertain any change in the Senate’s filibuster rules. As a result, 2021 went by with no action on federal voting rights legislation, even the watered-down version Manchin himself authored.
All the while, President Joe Biden lacks the urgency that our current crisis demands.
As Barton Gellman puts it, “Democracy will be on trial in 2024. A strong and clear-eyed president, faced with such a test, would devote his presidency to meeting it. Biden knows better than I do what it looks like when a president fully marshals his power and resources to face a challenge. It doesn’t look like this.”
Instead, Biden appears to be following the advice of people like Harvard political theorist Michael Sandel. He is trying to address the root causes of the resentments that Sandel believes fueled Trump’s rise.
Showing that government can work and take steps to close the yawning gap between the lives led by the very well off and the rest of the population may lessen grievances and resentments. It may be a sound step toward shoring up 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 avenue for registering their gratitude through the electoral process because their right to vote is being restricted. And they may have no chance to have their votes counted fairly.
As if this weren’t enough, there were many other really bad moments for the American legal system in 2021.
High on that list: the execution of Lisa Montgomery in January during Trump’s execution spree, passage of Texas’s SB8 and the Supreme Court’s unwillingness to block its implementation, the acquittal of Kyle Rittenhouse, the frivolous invocations of executive privilege to camouflage the stonewalling of the House of Representative’s investigation of January 6, the October 28 botched execution of John Marion Grant, and the continuing record of police violence against Black people.
If nothing is done to save, or resurrect, democratic institutions in this country, similar outrages are likely to multiply.
As 2021 draws to its end, we are left to consider what will be left of democracy as its institutions are weakened, and as access to the ballot box is strewn with further obstacles? And with democracy in such danger this year, what will American law’s worst moments in 2022, 2023, and beyond look like?
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Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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