Even as Donald J. Trump has energized millions of Americans to participate in politics, his presidency has challenged many core democratic norms (though as one of us has explained in an earlier column, norms aren’t the same thing as legal rules). The President has regularly attacked the media, threatened to lock up his political opponents, and intimated that he will stay in office beyond his elected term.
As troubling as these things might be, they will come to an end on Inauguration Day 2021. A more enduring threat to democracy is the Trump administration’s frequent rejection—embraced (or a least accepted) by many of his followers—of the very idea that there exist provable, empirical facts that can provide the basis for democratic discussion, debate, and decision-making.
Democracy allows a lot of room for us each to argue in favor of one outcome or another and to persuade our fellow citizens to join together to advance a goal. But that very process has always depended on a shared understanding that there are facts that inform, shape, and constrain governmental programs and policies. Democracy is impossible if facts that don’t comport with our own political views or preferred policies can be summarily and systematically dismissed as fake.
Yet across a wide range of policy areas including immigration, workplace safety, international trade, the environment, and the response to COVID-19 (to say nothing of things like Birtherism and QAnon), the Trump presidency has often justified its policies and defended its failures or omissions by asserting that facts are simply not known or reliable.
The President’s claim that the election was rigged and its results fraudulent has been the latest and most dangerous example. In seeking to persuade America that millions of dead people voted on November 6, voting machines systematically switched his votes, poll observers were completely barred from counting rooms, fake ballots were created and tallied, and the election was therefore stolen, the President has not relied upon facts supported by proof, but instead counted on people either not caring about what claims have factual support, or being too scared to speak up. Many Republicans in Congress, seemingly for understandable political reasons but fully aware that Trump’s claims of election fraud lack empirical foundation, have remained quiet even as people have taken to the streets of Washington and elsewhere to protest in the President’s name.
Enter courts and lawyers. They play an increasingly essential role in safeguarding and reinforcing the role of factual truths in our democracy. In efforts to undo or undermine the election outcome, the President and his campaign have brought lawsuits around the country contesting voting procedures and election results. To be clear, we fully support the right of aggrieved candidates to make use of the judiciary to pursue claims that have factual and legal merit. But every one of the dozens of lawsuits brought by the Trump campaign and its backers has so far failed in its essential purpose, and almost all have failed altogether. Why? Largely because finding facts is central to what courts—especially trial courts that frame and limit the record that appellate courts must use—do, and these courts absolutely reject the notion that factual truth is just in the mind of the beholder.
Many people worry that political considerations influence how courts interpret the Constitution and other laws. And appellate courts are (increasingly) influenced—sometimes permissibly and other times problematically—by philosophical priors and even partisan considerations when giving meaning to contested provisions in the Constitution or legislative enactments. But whatever one thinks of state and federal appellate courts’ interpretations of law (and for the record we still have a good amount of faith in them), in the trial court facts remain facts. They must be proved, and they must comport with principles of the law of evidence, which requires that proof be reliable, testable, and relevant to the claims being asserted. Trial judges, whether Republican or Democratic, whether elected to state court or appointed to the federal judiciary, all deeply appreciate that allegations must be supported by factual evidence.
By requiring the Trump campaign to advance actual, admissible, reliable evidence to support allegations of election irregularities before judicial relief can be granted, courts across the country and across the political spectrum have no doubt been helping to preserve democracy by respecting the will of the voters. But in insisting that the President show proof of a stolen election, courts hearing and deciding these cases have been protecting democracy in a much more fundamental way: they are not simply upholding a fair electoral process and outcome but, more importantly, they are modeling the idea that facts exist, that they can be proven or disproven, and that they matter.
Lawyers, too, have proven to be democracy’s guardians. Lawyers defending state election processes have brought forth evidence in response to the Trump campaign’s claims. Lawyers representing the President and his campaign also perform a valuable role. Some commentators have criticized the law firms handling the President’s election lawsuits. But in a democracy, in which facts matter, good lawyering on both sides is key to developing the best evidentiary record. Lawyers, bound by ethical rules that require a foundation for the cases they bring, are in the best position to present a client’s strongest facts or to tell the client that the facts required to make out a case do not exist and the lawsuit should not proceed. And good lawyers, upon realizing that objectively reasonable factual and legal assertions cannot be made, choose to no longer represent a client who insists on making them.
To be sure, lawyers and trial judges are not immune to the immense pressures of our times, including the increasing and increasingly problematic influence of social media and the algorithms on which it is based. And over time, even lawyers and judges may become less grounded in the culture and rigors of evidence. But we remain hopeful. For one thing, lawyers and judges get steeped in factual investigation and factual determination because that is their job. Trial judges are better than appellate judges in determining facts on the ground not so much because they see witnesses and accurately read emotions. They are better because that is their primary designated role, and specialization of labor is a powerful force. And it is not just that judges and lawyers engage in evidentiary analysis—they are professionally trained to do so. Law schools, whatever their faults, are still places where people have to debate each other and defend their competing positions by reference to an evidentiarily grounded set of materials. Legal educators should work hard to make sure the dangerous trends in the larger world do not undermine the careful training and habits of the mind that we seek to inculcate over three years, but that we hope will endure a lifetime.
At a time when many of our institutions have fallen into disfavor among ordinary Americans, we are proud (and thankful, during this week of Thanksgiving), as a law dean and a law professor, to be training students for a profession that might be democracy’s last best hope.
