As disturbing as the first three weeks of the second Donald Trump administration have been, we can take solace in the judiciary branch’s role in constraining at least some of Trump’s dictatorial impulses.
Emergency orders from federal judges have stalled Trump’s efforts to erase birthright citizenship, freeze trillions in congressionally mandated spending, give Elon Musk and his team access to the Treasury Department’s payment system, lay off U.S. Agency for International Development employees, pressure other federal workers to take a buyout and quit, transferring transgender women out of female-only prisons, and disclose the names of federal agents who investigated the January 6 insurrection.
Last week, Washington Monthly Contributing Writer Peter M. Shane explained how state attorneys general had the legal standing to stop Musk in the courts, and a few days later, 19 of them won a temporary injunction stopping Musk cold and prompting Vice President J.D. Vance to threaten the authority of judges on Musk’s social media site. In this case, so far, the Trump administration is formally responding inside the courtroom, not outside, with a hearing set for Friday. However, in the case involving frozen spending, a federal judge in Rhode Island warned that the administration has not properly followed his order to unfreeze federal grants sets the stage for a showdown between the executive and judicial branches.
The judiciary is able to exercise any power at all to check Trump because in 2021 and 2022, when Democrats controlled the White House and Congress, they resisted calls to pack the Supreme Court.
Suppose Democrats had succumbed to the temptation, which would have required abolishing the filibuster to ram through a partisan court-packing bill. In that case, the first thing the current Republican trifecta would have done is pass legislation along party lines to gut the entire judiciary. Every level would have been packed to negate any power held by judges untethered to Trump. All constitutional guardrails would have been eradicated. Then, Trump would have gotten to work issuing executive orders without regard to the Constitution or the law, and no one would have been able to stop him.
During the Joe Biden presidency, Democrats were still fuming about how former Senate Majority Leader Mitch McConnell denied Barack Obama the ability to appoint Merrick Garland—or anybody else—to the seat vacated by Antonin Scalia upon his death in 2016, then not only let Trump fill that seat in 2017 but also the seat opened up after Ruth Bader Ginsburg’s death in near-record time ahead of the 2020 election. The rage led many to believe that the worst damage to the independent judiciary had already been inflicted.
Kermit Roosevelt III, a constitutional law professor, wrote in 2021 for Time magazine in defense of court-packing:
There are political considerations here, to be sure. The one put forward most often is that if Democrats expand the Court, Republicans will do so in response as soon as they get the chance. That’s possible, but battles over the court are already in a downward spiral of retaliation—just ask Merrick Garland. Game theory actually suggests that the way to prevent an opponent from repeatedly taking advantage of you is to show that you will fight back. The concern that Republicans might manipulate the size of the Court for partisan advantage in the future if Democrats do it now overlooks the fact that they’ve already done it, in the very recent past. Refusing to consider any Obama nominee (and pledging to do the same to Hillary Clinton if she won) is exactly that.
(Roosevelt would probably be applauded by his great-great-grandfather Theodore, who controversially campaigned for president in 1912 on a platform that included recall by referenda of state judicial decisions and later defended the proposal because “the doctrine of the divine right of judges to rule the people is every bit as ignoble as the doctrine of the divine right of kings.”)
On the now-defunct podcast, Positively Dreadful in 2023, host Brian Beutler hosted a debate on the topic of court-packing and rhetorically asked:
If Democrats manage to get a large enough majority to make the court 13 members, and 7-6 liberal, and then five years, whatever, ten years down the line, Republicans got a trifecta again and made it 8-7 conservative, and then you went back and forth like that until some kind of detente broke out, why is that worse than the situation where it’s … ten years until attrition does the work for Democrats?
We now see why it would be worse. It didn’t take five to ten years for Republicans to win a trifecta. And they did so with the most authoritarian-minded presidential ticket in American history, determined to twist the Constitution beyond the Founders’ recognition and treat the law as an inconvenience to be ignored.
The entire point of the Constitution is to prevent consolidation of power in the hands of one individual or faction. The diffusion of power does not allow for expedient and efficient activist government, which has long been a frustration of progressives. That frustration has led to arguments that the various unwritten “norms” that further check a potential tyranny of the majority—such as the filibuster—are tilted in favor of libertarian conservatives and corporations and, in turn, do not deserve reverence or deference. However true that may be, we can now see more clearly that there is a bigger threat to democracy than a legislative process cumbersome yet still navigable for progressives: a lawless process not cumbersome at all to oligarchic fascists.
Alexander Hamilton recognized this threat when defending the Constitution’s provision for lifetime judicial appointments in Federalist No. 78:
…the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that [quoting the French judge Montesquieu] “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”
And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments … from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its Constitution, and, in a great measure, as the citadel of the public justice and the public security.
Hamilton’s argument does not assume the Supreme Court will be infallible. Critics of the Supreme Court’s un-elected nature can point to many examples of horrible decisions that violated human rights—from the Dred Scott decision that denied citizenship to all descended from enslaved people of African descent to the Korematsu ruling that blessed Japanese internment camps during World War II, to the Dobbs opinion which ended federal abortion rights.
But Hamilton’s point was that illiberal judicial rulings can only harm liberty when other branches of government cooperate. (For example, Dobbs’s impact, while still significant, has been mitigated because most state governments still protect abortion rights.) An independent judiciary is the only defense against illiberal acts from the executive and legislative branches, and “permanency in office” is the maximum protection for judicial independence.
We have seen that independence in action. Judges appointed by Ronald Reagan issued injunctions against Trump’s attempt to end birthright citizenship and to send transgender women to male prisons. Democratic-appointed judges who issued stays in others have power even though Democrats lost the last election.
This is by design. Losing an election should not give the winners all power and the losers none because then the losers have little reason to continue participating in our democracy. Therein lies the path to secession and civil war. As former California Governor Jerry Brown once said, “The only way this country can hang together is if there’s a due respect for the non-winners.”
Might this Supreme Court, perhaps the worst since the days of Dred Scott, prove insufficient to the task at hand? Yes, because no Constitution on paper can provide comprehensive protection against a determined group of authoritarians atop all branches of government. The Court’s decision last year to give Trump immunity for any “official” presidential action was deeply unsettling. But Trump also lost many Supreme Court cases in his first term, including cases intended to help him steal the 2020 election, so we should not assume this conservative majority will side with Trump reflexively, no matter how absurd.
If Democrats did assume the worst in 2021 and nuked the independent judiciary, Trump would now have the ability to pack the Court with complete toadies who would probably go as far as voiding the 22nd Amendment and allowing him to become President-for-Life. Thankfully, Democrats contained such impulses, and now, our democracy still has a chance.
