Celebrating the Mediocre: Authoritarianism and the Rule of Law

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Celebrating the Mediocre: Authoritarianism and the Rule of Law

By Joel Levin

It is difficult to be enthusiastic about the mediocre. Why is getting a C good? Why is making the team but riding the bench, being the eternal “spare,” a cause for happiness? We all want to be part of Lake Wobegon, as Garrison Keeler described it: belonging to a place where “All the women are strong, all the men are good looking, and all the children are above average .”We are not there, and that is not very reassuring. Perhaps worse yet, we are even more distressed when the mediocre is celebrated. 

Yet that is our reality. So much of our ordinary culture today – the outer edges of mind-numbing television and the central core of blathering and unsubstantiated social networks, the bland pronouncements by politicians of misunderstood economic platitudes, ones often obsolete or false; personal rights that are incoherent or indefensible or exclusionary, the braggadocio of commercial hype and medical miracles that make promises their promoters know to be overstated, if not largely false – is at best mediocre. We might take that mediocrity to be a relief from the outright lies of evil individuals whose actions are indefensible: the Putins, whose invasion of Ukraine has killed hundreds of thousands, or the Middle East countries who have sacrificed at least that number in a slaughter of surrogates contest in Yemen. 

Closer to home, the followers of QAnon, Fox News, and Trump scream outright lies about events that never were – from pizza parlors attributed to prominent individuals for pedophilia rings to conspiracies about Covid vaccines used to monitor and take over human bodies to denying events that certainly did occur, such as Biden’s election win and the insurrection on January 6 at the U.S. Capitol. If mediocrity provides relief from the lies, the fraud, and the evil surrounding us, it is, at best bittersweet. The commonplace and unimaginative become the refuge from so much else. More than bittersweet, they may even be considered depressing to the human spirit and dangerous to continued human existence.

One place where that mediocrity has had a long history and where celebrants have bragged about it almost from the beginning – not for its lack of excellence, but rather for the opposite, its miraculous and wonderful proclamations – is the judiciary. Here, we need to be careful. Individual judges are often criticized, more than occasionally wrongly, giving us a picture of those most needing criticism and the least likely to receive it. The celebration of the judiciary is rarely called that.

 

One way to look at this is to ask the following: if Americans today were asked to name a famous judge from a long time ago, whatever that might mean, they might, on a good day, name some combination of John Marshall, Joseph Story, John Harlan, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Earl Warren, William Brennan, or Thurgood Marshall. It would be a much smaller group that could tell you why any of these judges were good if they were, or why and when they stumbled. (For example, Oliver Wendell Holmes was the seminal judicial advocate of free speech and author of the “clear and present danger” standard on the one hand. On the other, he was the author of a decision, Buck v. Bell, that wrote eugenics into the law of America, a precedent often cited by the Nazis). 

A revealing feature of the celebration of the judiciary is that the celebrants rarely mention its members and their activities. The justices and the judges are missing from the conversation and their decisions and rule-following. Elevated is something other than the gritty reality, often mediocre, typically passed over. Instead, the term employed is “the rule of law .”We like to see ourselves as a nation based on the rule of law, not the rule of men (and now women). We want to believe that all that matters is not the lawless, but the lawful, as the law itself is a good thing, following it is a better thing, and the absence of following the rule (or rules) of law is a disaster. All these statements, of course, are false. 

Consider the phrase “the rule of law .”What possibly can it mean? Indeed, rules of law and laws existed in Stalinist Russia, Mao’s China, Nazi Germany, Ayatollah Iran, and other moral hells. Nowhere were the laws any clearer, better stated, more closely followed by the judiciary, or given more significant notice to fellow citizens than in apartheid South Africa. The attack on those laws by Nelson Mandela, Steve Biko, earlier by Mohandas Gandhi, and for decades by the ANC and millions of others is not a matter to condemn. It is a matter of celebrating. Celebrating the rule of law in South Africa is the opposite of what any well-ordered, ethically justified socially, advantaged economically, and reasonable society would want. As Elijah Cummings reminded us after the January 6 hearings and presented at greater length in his book, “We’re better than this.”

 

Suppose the individual laws that are parts of the rule of law are sometimes unjustifiable, even horrendous in others (one might think of legal systems that blessed slavery, torture, caste hierarchies, or death camps). In that case, following that law could not be more justifiable than disobeying it. One hardly can think of Gandhi’s march to the sea or Martin Luther King’s march in Selma as less defensible than following the rule of law that protected colonialism and segregation. Finally, even dispensing entirely with the rule of law, as the heroes of the American Revolution – Washington, Adams, Jefferson, Greene, Jay, Hamilton, and others did – follows as justifiable in the same (ethical) way.

All this shows is that, at times, the rule of law is pernicious or not worth following and, at times, the wrong way to go. At other times, it is a meddling, commonplace solution, hardly worth being enthusiastic about, let alone celebratory. Should that be the end of our loyalty? The answer is, of course, no. That needs to be stressed when the judiciary is under attack around the globe and in America. We must then consider why that mediocrity is worth fighting for.

We often overlook or blur a distinction that may overlap, but it is essential to remember that courts are assessors of facts and makers of rules. Courts clearly do both, and it is worth emphasizing that they make new and interpret old rules, early and often as central to their mission. They do so daily, court by court, appellate level by appellate level, jurisdiction by jurisdiction, often in a way that is messy, indefensible, incoherent, and inconsistent with prior rulemaking. I suggest they do better than a mediocre job when assessing facts: they do a pretty good one. 

 

Of course, this fact-finding by courts and juries is on display everywhere, given the fascination of Americans with jury trials, political trials, criminal hearings, and the travails of the rich and famous, the notorious and the infamous, and the powerful and the oppressed. It forms part of the central American conversation. Was O.J. properly found not guilty in the criminal case? Given the same facts in the wrongful death case, was he properly found liable? Should Bill Clinton have been found guilty of perjury? More recently, were the outcomes of the criminal cases of those charged with killing George Floyd and Caylee Anthony, and Trayvon Martin correct? What about the conviction of Alex Murdaugh? Or the January 6 insurrectionists? Did the court and jury reach the correct result in the Johnny Depp/Amber Heard defamation trial? For that matter, what of the finding of guilt of Mary Surratt, hanged basically for owning the rooming house that John Wilkes Booth occupied when he assassinated Abraham Lincoln?

The prominence of many of these trials to many Americans shows the law’s importance and centrality to American culture. It displays how easily everyone can judge the judges and be jury to the juries. Even with attempting to assess the merits of any of the abovementioned cases, one might consider those cases as one looks over the list. Many similar others, where there is a local murder, a local lawsuit, a notorious divorce, or corporate misconduct (the nearly tried cases of Elon Musk with Twitter and Donald Trump with Trump University), we might make the vast generalization that – most all the time and in most all the cases and for most all the circumstances – there is a broad consensus that the right thing was done. There is a much broader consensus than any political one, where not only are Democrats and Republicans split pretty evenly, but the distance between them also continues to widen dramatically. There are no liberal Republicans or conservative Democrats, and while there may still be some moderate Democrats, there are hardly any moderate Republicans left. On fundamental issues – from immigration to guns, from abortion to foreign aid, from gender definitions to educating schoolchildren – the divide continues to deepen, and the anger against one another increases. Why is that?

 

The answer lies in the fact that the courts (traditionally) have three features that allow, if not always, to arrive at truth and fairness, it enables it to usually come close (what philosophers might call greater “verisimilitude,” where the more things in a set are true, the more verisimilitude they have ). 

First, witnesses are examined under oath, where they are forced to answer the given questions or face serious consequences. 

Second, courts are open, more or less, to all, and all, more or less, have a right to be heard in the courts. No private justice or punishment is meted out, and no voice is left shouting in the wilderness. 

Third, the judges and juries are nominally neutral, without a personal stake in the outcome, and without any strong bias (at least, presumably and hopefully not much of a bias) in favor of any party or position. Of course, all three of these features can be corrupted or degraded, and the latter has been under widespread attack in America for decades. Forced arbitration often keeps parties out of court on the one hand, while the expense of litigation prevents them from getting there in the first place on the other. Moreover, judges have been appointed or elected just because they have certain politics and biases, and they are expected to use those biases to reach certain positions on political matters. 

 

However, when it comes to the facts, who had the right of way on the road, who should be the better guardian for the child, did the hospital render adequate care to the patient, did the builder breach the construction contract, was the suspect identified adequately as leaving the scene of the crime, was the justifiable shooting self-defense, was the employer right in letting go of minority employee for cause or was it a mere pretext? These kinds of questions are of crucial importance to the way we live in our civil society and seem well-solved by a legal system that allows for the examination of witnesses, the assessment by neutrals, and the right to get there in the first place.

What seems more problematic is some of the rulemakings the judges do daily. I suggest three types of rule-making here and ask whether the many attacks on the mediocre judiciary are an excellent solution to where courts go wrong. The first is the general rule-fashioning task of the courts. It sometimes involves changing existing court-made rules, sometimes creating rules when there were none before, and sometimes interpreting legislative actions that make rules imperfect or imprecisely and mold them into a usable way for the courts to administer. In many ways, the best judges are simply those who are more skilled, astute, better scholars, and, to a large extent, better assessors of the society where they live.

Take as an instructive example Lord Mansfield, Chief Judge of King’s Bench. In the 18th century Great Britain, Mansfield rewrote the laws of contracts and commercial transactions. He observed that Britain was no longer just an isolated country whose economy was rooted in large estates where peasants raised the crops, shepherds drove the herds, and miners extracted the coal. Servants waited on the master and mistress of the manor. Instead, there was international trade, from India to North America, Cape Horn to the Cape of Good Hope, and China to Jamaica, manufacturing at home, in the colonies, and with trade partners abroad. To move law from the Middle Ages to the modern world, refashioned the rules of commercial transactions, insurance, contracts, negotiable instruments, restitution, and a whole panoply of legal regulations that allowed for trade, modern commerce, and the exchange of goods. In other words, he paid attention. 

 

Unfortunately, there are too few Lord Mansfields or, in the United States, too few Lemuel Shaws, Benjamin Cardozos, or Roger Traynors. The average judge possesses a relatively limited outlook, somewhat insular powers of observation, and a relatively short supply of creativity. However, they often tend to have ample mediocrity in analysis. Choosing judges from a group with no training and overseen by no one might predictably lead to such a result. That said, three structural phenomena mitigate that mediocrity.

 

First, within the judiciary in America, and seemingly almost everywhere, there is some recognition within the collegiate ranks of those on the bench that some other judges’ analysis, reasoning, and insight are far better than their own. Whether it is the desire to borrow the light of their betters to make their shine more brightly or some natural modesty within the group when confronted with those with more incisive and perspicacious outlooks, or simply the desire to try to get it right by finding what’s right and those who seem to know, legal systems are typically characterized by judges moving toward the better, toward the less inconsistent, toward the more justifiable, and the just. The exceptions to this are so widespread that one is reluctant to make such a generalization, but the evidence demonstrates its validity.

Second, when the rulemaking misses the mark, any mishap or imprudence, or injustice is correctable by the legislature. For example, if insurance coverage is not allowed, if child custody practices are unfair, if certain types of cognitive impairment are unrecognized for criminal defendants, or if liability is not assigned when it might otherwise be justified (for instance, limiting liability for police officers), then the problem is not without a remedy. Legislatures, in theory, the seat of the popular will, can correct it. It is undoubtedly true that legislative judgment is far from infallible, and many of the remedies, almost always labeled as “reforms,” are akin to the medicine being more poisonous than the disease. But the out exists, and the judges know it. In those cases, which we will touch on later, where such remedying is only possible with a Constitutional amendment or Constitutional crisis, bad rulemaking can be disastrous. Here it parallels the disaster of ignorant or unjust legislatures or arbitrary Presidential orders. The ill effects of Dred Scott v. Sanford, the pernicious fugitive slave case that declared African Americans inherently inferior based on the Constitution (as well as the Bible, another authority used at the time), were only remedied by the Civil War. A similar problem occurred in Citizens United v. FEC, which barred campaign finance reform short of a Constitutional amendment from enactment. There was no war, but a revolution in politics, where money became even more important and the individual choice became less. The repercussions of the Dobbs case, which overturned Roe v. Wade, remain to be seen. 

 

If the general rulemaking by average, if neutral, judges – well-schooled by counsel on all sides and assessed by their peers – gives over time and through a reasonably attractive process of focusing on the merits of good and even laudatory results, that is the best of the three tasks undertaken by the courts. The second is what we might call judicial facts. These are fact-finding by courts about the social world that are not well-informed by a judiciary that can be myopic in its outlook, restricted in its membership, limited in its experience, and sheltered in its day-to-day life. The most notorious examples of American law include just this type of fact-finding. Here are a few examples. The Supreme Court decided that there was no great harm caused by evicting Native Americans from the land they had always held (Cherokee Nation v. Georgia), denying African-Americans to vote (U.S. v. Reese), being indifferent to the workplace conditions of children and pregnant women (Lochner v. N.Y.), or to deciding that it was of no great moment to incarcerate over 125,000 Japanese-Americans in internment camps (Korematsu v. U.S.), or that women’s health would not be particularly adversely affected by restricting abortion (Dobbs v. Jackson): all these cases are based on fact-finding by courts hardly vetted by any scientific, social scientific or expert community, often not held by the populace at large, or at least not held by those free of overt bias, and sometimes contrary to any reasonable view of the world. 

The problem here is that the legislature can hardly be counted on to come to the rescue. The expulsion of Native Americans, the institutions of slavery and segregation, the internment of Asian-Americans, the banning of a woman’s right to choose, and any other number of the actions all originally arose, not by the activities of the courts, but by legislatures. Most of the time, and in most places, it is the legislature who, through indifference or willful blindness, is often too happy to echo the worst of nationalist, racist, sexist, or otherwise nativist popular opinion. In that way, it usually takes two branches to make sure things go wrong, which is why Alexander Bickel famously called the judiciary “the least dangerous branch”. The courts sometimes refuse to agree with this morally tainted fact-finding by the legislatures. We see this with court decisions forcing desegregation (Brown v. Bd. of Education) and ensuring the right to marry between those of different races (Loving v. Virginia) or similar genders (Obergefell v. Hodges). 

 

Nevertheless, to cite what Lon Fuller once called “the limits of adjudication,” one wonders why a group as unqualified as the judiciary should be called upon to gather, sift, and assess complex social and economic facts without the benefit of scientific expertise, peer review, legislative fact-finding, or investigation and assessment why administrators with skills in the relevant area. The Fuller concern is currently on ugly display in the courtroom of Judge Kacsmaryk, who is being asked to second-guess the judgment of a vast and esteemed administrative agency, the FDA, whose biologists, pharmacologists, biochemists, and physicians 22 years ago approved the anti-abortion pill, Mifestrone, as safe.

 

Finally, the third area for the courts is where courts’ decisions have no democratic remedy as an override, or at least one extremely difficult to achieve, should their decision be perceived as wrong or widely unpopular. We see this in court decisions today, such as those striking down any possibility of campaign finance reform or preventing the ability of the legislatures to restrict access to various weapons to various buyers. Of course, these restrictions on legislative action mirror ones that we may find less objectionable, like the inability of state legislatures to segregate schools. We might see the right of all children equally to receive a suitable education as more important, in a fundamental way, than the right of a neo-Nazi with cognitive impairment to carry semi-automatic weapons into those same schools. One of the enduring qualities of the courts is that they are often both damned or praised for their anti-democratic, unpopular, idiosyncratic, and unforeseen decisions, mainly when those decisions are difficult to change.

Thus, a cry is heard when those decisions create outrage or shock or significantly challenge powerful institutions or interests. Those decisions are often criticized for ignoring facts embedded in the larger social system or reaching conclusions contrary to at least an essential part of the political spectrum. The cry goes out to restrict or change the courts, and it is often preceded by attacks on individual judges, the methods of choosing those judges, and the sovereignty of those judges. Some of the criticisms have some justifications in some instances. Mediocrity alone would ensure that. The problem is one of collateral damage. It is an almost inviolate historical given that authoritarian regimes and power-hungry, charismatic, and demagogic individuals make it a fundamental part of their programs to weaken and emasculate the courts. Degrading courts is a prerequisite for authoritarianism, corruption, despotism, and ending individual rights.

Historical examples abound. Unfortunately, contemporary occurrences are now too frequent. Using these structural problems with the courts to disarm them, thus preventing them from restricting authoritarian policies and regime-making, has come home to modern democracies. Consider Europe. Upon winning the election in Poland in 2015, the far-right Law and Justice Party immediately introduced and then enacted legislation to dismantle the composition and independence of the judiciary. The government could remove judges at will, forced retirements were ubiquitous, and the Constitutional Tribunal was debilitated. The results were predictable. Courts endorsed LGBTQ-free zones, prevented women from having the right to choose an abortion, and declared that the human rights laws of the E.U. and the European Court of Human Rights need not be obeyed. In short, the government’s newly reconstituted courts accepted any restrictions the Law and Justice Party decided to oppose, whether contrary to European law or individual Poles’ rights. 

 

The right-wing ruling party of Hungary, Fidesz, and its leader, Viktor Orban, followed the Polish example. They set up a parallel judicial system, a so-called “administrative judicial system,” where all issues involving human rights – from voting to protections from the police, from asylum to the right to protest – were stripped from the existing courts. New courts were appointed by the government and under its thumb. They were tasked with serving as the guardians of democracy and individual rights. The results are predictable.

 

The process promoted by far-right governments has become widespread. In the past week, the U.K. Home Secretary, Suella Braverman, has reverted to the traditional populous line of downgrading human rights violations in the face of the populace’s will, or at least that part that votes Conservative. She defends the morally indefensible immigration policy of the U.K., which fails to allow asylum seekers (nominally protected under British and international law) to receive asylum. She also worries that the European Court of Human Rights will recognize this obvious fact. She has admitted, “In a whole range of policy areas, I sometimes think the jurisprudence from the Strasbourg court is at odds with the will of Parliament or British values more generally .”Braverman left open whether any court rulings that did not express those so-called “British values” rather than the values of human rights and international law would be followed in the U.K. Courts degraded, rights trampled.

 

This line of attack is now familiar in America. It was made from the beginning, perhaps in a way that puzzled people initially, from our right-wing authoritarian nationalist, Donald Trump. Trump’s view on courts is in line with authoritarian views generally. He fails to acknowledge that one of the central tenets of judges, that is, that they are neutral (or at least can put any relatively weak or minor biases aside), is very different from those charged with political matters. Politics requires to some significant degree, an agreement on platform, policy, goals, and loyalty to those involved in the political project and the project’s leader. Courts are different. A judge who disagrees is not, per se, acting disloyally, improperly, or biased. The whole bet on independent courts is that individuals with years of legal training, yet more years of experience in the legal culture, and a certain social pressure from within that culture and profession to act as individuals serving as judges will generate results differently than if only working personally or politically. If that bet is wrong, the entire system is worthless. One might think, however, given the experience of western courts, at least since the Enlightenment, the bet is worth taking.

 

Trump challenges that in a fundamental way. We might note his well-known early attack on Judge Curiel, who was hearing the Trump University case. Trump said of Judge Curiel, “I have a judge who is a hater of Donald Trump. He’s a hater”. He said that because it would not be unnatural for anyone who is Mexican to think someone who labeled Mexicans in the U.S. as drug dealers, criminals, and rapists to be at least perturbed, if not biased. Trump trashed the bet on court integrity, a bet that implied that ethnicity is not destiny. In his usual reckless way, he also labeled someone as Mexican who is American (Judge Curiel was born in Indiana. He had ancestors who had lived in Mexico, but so, for that matter, so did Mitt Romney). Weakening the court is an essential part of authoritarian lawlessness. Racist and ethnic attacks are the favored tools used. These are facts Trump clearly understood.

 

Trump continued that theme throughout his Presidency. Despite having a clear majority of Republicans on the Supreme Court that generally agreed with him on guns, abortion, redistricting, immigration, the environment, voting rights, and almost every issue that came before them, that wasn’t enough. Authoritarians require total obeisance. 

 

Trump has followed this truism, brooking no dissent. He said that Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse (disqualify) themselves in any case that he was involved in because they dared to disagree with him in a case involving immigrants’ rights to public benefits. He later attacked Judge Amy Berman Jackson, overseeing the criminal case of his close advisor, Roger Stone, in which Stone was eventually convicted of lying to Congress, witness-tampering, and obstructing a federal investigation. Trump also went after one of the jurors who had voted to convict Stone. “There has rarely been a juror so tainted as the foreman in the Roger Stone case. Look at her background. She never revealed her hatred of ‘Trump’ and Stone. She was biased, as is the judge”. He has continued his attacks, calling Judge John Tigar of the 9th Circuit a “disgrace” and an “Obama judge .” He then attacked Judge William Alsup for temporarily blocking the termination of the Deferred Action for Childhood Arrivals program, DACA. These attacks were ad hominem, personal, and political and made because the judge disagreed with Trump’s legal position. If an Obama judge or an independent-minded judge, or a judge with a tainted (in the view of a prejudiced nationalist) ethnicity agreed with Trump, that was fine. If not, it was time to muzzle the judiciary as an independent force.

 

These acts represent the calling card of authoritarians, despots, and those who wish to end all civil liberties for those who disagree with them. It is a strategy no different from that of the governments of Russia or North Korea, or Iran. Dissent is quashed, and judges, who might try to protect that dissent, are attacked. That attack is central to carrying out the authoritarian program, which leaves us with a very troubling situation in Israel and its extreme right-wing leader, Benjamin Netanyahu. 

 

Netanyahu’s Likud coalition has introduced legislation that would essentially grant Israel’s parliament, the Knesset, the ability to overrule any Supreme Court decision by a simple majority. It would also provide it with the power to take over the nomination process of judges from a committee set up with expertise to make those nominations, the right to strip government ministries’ legal advisors from power, and the ability to remove the Supreme Court’s power to strike down legislation it deems “unreasonable .”The potentially troublesome court (although mainly compliant with the government’s aims in practice) stands in the way of two of the favorite tools of any authoritarian regime: chauvinistic nationalism and high official corruption. 

 

The threat here is real to the Israeli government. Last year, the Israel Supreme Court ruled that a group of Palestinian families whom the government had ordered evicted could, at least, for the moment, remain in their homes. This case involves a decades-long, complicated battle between Palestinian residents and the Israeli government (and Jewish settlers) over the Jerusalem neighborhood of Sheikh Jarrah and surrounding areas. Settler politics is central to the fragile coalition government. However, settler politics is part of the glue that holds that majority together, which places distinctions between Arabs and Jews in the so-called area C at the core.

Moreover, Netanyahu himself faces many criminal charges, from bribery and fraud to breach of trust. Although managing thus far to delay the trial itself, he faces a real possibility of conviction that could eventually end with an affirmance of guilt by the Israel Supreme Court. Should the legislation pass, Netanyahu’s conviction and the rights of the East Jerusalem Palestinians could be erased in a moment by a simple majority in the Knesset. Israelis would then be haunted if Rep. Elijah Cummings’ moral imperative were turned into the question: “Are we better than this?”

 

This problem has been noticed in Israel. Crowds, at times numbering nationally up to half a million people, perhaps 5% of the entire country, flood the streets daily with single-minded consistency, protesting their opposition to the government attack on the judiciary. Here, again, it rarely seems that the judiciary is being applauded for its clarity or brilliance, its members’ outstanding contribution, or its grand vision for the future of Israel. By recent polls, the popularity of the Israel Supreme Court barely exceeds 50%. But what the protesters realize, and what Netanyahu would be forced to admit, and what those in Poland and Hungary, and America already know too well is stark: the last barrier to authoritarianism is an independent if mediocre, judiciary.

 

We might summarize the argument then. The courts are populated by mediocre judges, not by accident, but by design. The system rewards those who are politically savvy and have connections. It allows appointment or election without vetting and places almost no restraints on judges once they are on the bench. Also built into the system are attractive features: neutral judges (outside the web of the partisans), well-honed techniques to establish the facts (direct and cross-examination under oath, open discovery, and compelling witnesses to testify and documents to be produced), and a process available to what is metaphorically considered the best disinfectant against corruption and dishonesty, the sunlight of the public forum.

Moreover, legal cultures typically profess and encourage values of neutrality and individual rights – and there is a great deal of historical evidence that there is something of a consistent, almost inevitable, drift in that direction – and recognize their best actors (the Lord Mansfields and Benjamin Cardozos). The rules judges create or interpret are often flawed, but the judicial culture typically improves them with age. The courts form a backstop against the worst actions and most unreasonable claims, placing them in authoritarians’ crosshairs.

 

In America, our local authoritarian figure, Donald Trump – despite his best efforts to game the process, change the vote counts, alter the electoral college results, and pressure Congress to reject democracy – lost reelection. We are temporarily safe for now. The kinds of attacks he could make while in power no longer loom. That said, those potential attacks remain by those out of power but could return if they succeed in government. Moreover, being a successful despot in America is a complicated process. Making structural changes is difficult, amending the Constitution is nearly impossible, and controlling each of the state elections has thus far proven too large of a task even for the billionaire beneficiaries of Citizens United. Sadly, the same cannot be said for Poland or Hungary. Neither could it be said for Israel. Whether Israel goes down the path of authoritarianism – with its related loss of civil liberties, diminishing of the electoral process, attendant nationalism, marginalization of minorities, deprecation of certain (usually religious) groups, and policies more concerned with promoting selfishness than encouraging equality – is one that is difficult to judge.