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Friend of Wisdom of Crowds and frequent podcast guest Samuel Moyn is a professor of law and history at Yale University, and author of several books, including Humane: How the United States Abandoned Peace and Reinvented War (2021, Macmillan) and Liberalism Against Itself: Cold War Intellectuals and the Making of Our Times (2023). He is also the author of a recent article saying that no, sorry, the courts cannot save American democracy.

If you’ve been following our podcast lately, you’ll know that Shadi and Damir think differently. Both are preoccupied with the question of whether we’re in a constitutional crisis. And both have argued that it’s the Judiciary branch which can stop Trump from becoming a tyrant. We are in a state of “brinksmanship with the Courts,” as Damir puts it.

Moyn, however, warns that “Judicial processes can launder radical political change,” like the ones Trump is trying to make. The Supreme Court might cede a lot of ground to the Executive before we get a big decisive case that checks Trump. In fact, we might never even get such a case. The real test for democracy, Moyn argues, will come at the ballot box: “Do we have elections that stay competitive where the loser accepts his loss?” A lot will depend on whether Democrats can figure out how to make a popular platform. A lot, too, will depend on Republicans, and whether at least some of them will part ways with Trump.

Shadi asks Moyn for some historical perspective. Is this the biggest crisis in US history? Probably not, but what can we learn from historical perspective? What is the baseline against which we should judge ourselves today? Moyn argues that “The only use of the past is to make a better future. … Let’s try to understand why things broke before.”

In our bonus section for paid subscribers, Moyn and our hosts discuss recent White House legal challenges against birthright citizenship; anti-Trump lawfare; why Moyn believes that “what the law is is decided in the present political struggle”; why a parliamentary system is usually more democratic than a presidential one; whether the US is culturally attached to a strong executive branch; and much more.

Required Reading and Listening:

* Samuel Moyn and Ryan D. Doerfler, “Don’t count on the courts to save democracy” (Washington Post).

* Samuel Moyn and Ryan D. Doerfler, “We Are Already Defying the Supreme Court” (Dissent).

* Our last podcast episode with Samuel Moyn: “Did the Supreme Court Just Subvert Our System of Government?” (WoC).

* Live taping: “Samuel Moyn and Osita Nwanevu on Voters vs Judges” (WoC).

* Podcast episode, “Is Democracy Ending?” (WoC).

* Juan J. Linz, “The Perils of Presidentialism” (Journal of Democracy).

* CrowdSource about the Mahmoud Khalil case (WoC).

* Santiago Ramos, “From the Harper’s Letter to the Khalil Case” (WoC).

* “Judge warns of consequences if Trump administration violated deportation order” (Reuters).

This post is part of our collaboration with the University of Pittsburgh’s Center for Governance and Markets.

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