The Courts Are Our Last Defense Against Authoritarian Takeover

Are they up for the task?

Photo by Dave Vaill on Unsplash

Things are bad and Americans have few defenses left. I don’t know how else to start this newsletter. The Trump administration has deployed ICE agents across the nation to grab immigrants off the street, and now they’re trying to deploy National Guard troops from red states into blue cities to crush protest and dissent. This may be just the beginning. It seems like one of the back-room schemes is to claim Trump holds unprecedented constitutional authority to call in the military against Americans — and not just that, but to claim that Trump’s authority is totally unlimited (Stephen Miller announced this plan on live TV, then apparently panicked, refused to speak, and pretended there was a tech glitch in a truly bizarre segment). There is talk of invoking the Insurrection Act — claiming that protests or even basic liberal or anti-Trump organizing amounts to insurrection and justifies calling in the troops. That plan also hinges on the argument that the president is the one who determines whether an insurrection is afoot, which would make any invocation of the Insurrection Act de facto legitimate, for whatever cause the president deems worthy.

In the meantime, Miller is also behind an effort to bring the full force of the federal government down on progressive organizations, investigating their financing and accusing them of engaging in or abetting domestic terrorism. These are not fringe groups; he’s setting his sights on very normie orgs like ActBlue, Indivisible, and George Soros’s Open Society Foundations. There is no evidence that any of these groups are abetting domestic terrorism; there’s also no evidence that political violence is more a left-wing problem than a right-wing one (and in fact, right-wing political violence remains more common, although political violence from any group is obviously abhorrent and should be stamped out). The aim is not to fight political violence. It is to kneecap the left’s ability to organize and resist Trump.

The attorney general is calling Antifa a “radical terrorist organization,” even as Antifa is not much of an organization at all, and more a label that various anarchists and left-wing agitators put on themselves. A group of right-wing propagandists were invited to the White House this week to brief the president on Antifa, which DHS secretary Kristi Noem said is “just as sophisticated as MS-13, as TDA (Tren de Aragua), as ISIS, as Hezbollah, as Hamas — as all of them — they are just as dangerous.” Jack Posobiec, perhaps most famous for starting the “pizzagate” conspiracy theory, explained that Antifa was not only dangerous, but “has been going on for almost 100 years ... going back to the Weimar Republic in Germany.” (Who were the anti-fascists opposing in Weimar Germany?).

And to be clear, while some self-styled Antifa protesters do dumb stuff like burn cars — crimes for which they should be prosecuted — this is not actually a sophisticated terrorist operation, nor much of an operation at all. But the Trump administration is making targeting it a top priority because the very unorganized nature of Antifa makes it a handy label to apply to whomever the administration wants to target.

The president is also publicly calling for the arrest of Democratic politicians, including Illinois Gov. JB Pritzker and Chicago mayor Brandon Johnson.

Oh and one of Trump’s former personal lawyers who has no prosecutorial experience is on a spree of indictments against law enforcement officials Trump sees as enemies: First James Comey, now Leticia James. The charges are so trumped-up and meritless than no one else at DOJ would take these cases on, and the good news is that the lawyer leading the charge is a moron who seems awfully likely to lose. But that, again, is not the point. The point is to sow fear and discourage pushback. If challenging Trump might get you indicted — or arrested or deported or financially targeted or on the wrong end of a soldier’s gun — you’re going to be a little more reticent to challenge Trump.

I’m not shocked that nearly the whole of the Republican Party has lined up behind these efforts, but I am a teeny tiny bit surprised that there seem to be no principles left. Trump is bragging that he “took the freedom of speech away” from protesters — that is an actual quote — and it’s met with a shrug from the same people who spent years screeching that firing someone for using a racist slur was a Hitlerian destruction of their fundamental First Amendment rights and that they were “free speech absolutists.” It turns out the only absolutism involved was devotion to Trump. This administration is also blowing up boats they claim are trafficking drugs with no evidence, no due process, and certainly no congressional approval — and then Congressional Republicans are voting to give away their own power and authority to the president.

Several large news organizations have caved and paid out large settlements to Trump. A woman with no real experience as a reporter who founded a media outlet that mostly covers “woke” outrage stories is now in charge at CBS. Large law firms have pulled back from legal work that would challenge Trump, and are instead donating thousands of pro bono hours to conservative causes to curry favor with the administration. Business and tech leaders have cozied up and seem quite willing to do the president’s bidding.

The only real force in the way of these encroachments and more? The courts. And so far their record has been mixed.

The lower courts have been largely effective in stymying the very worst and most obviously unconstitutional Trump administration actions. Some judges have blocked various National Guard deployments; others have allowed them. The Supreme Court has sided with Trump time and again, extending him enormous powers and protections, and essentially telling him that he can do as he pleases without consequence. And because the Trump administration’s aggression has created so many cases that now demand review, the Supreme Court has been relying heavily its shadow docket — not fully deliberating or issuing considered decisions, but basically saying yay or nay (and usually “yay”) to whatever Trump has done or wants to do.

I have to imagine that every federal judge in the nation, including the nine who sit on the Supreme Court, understand that they are among the last bulwarks against autocracy — but also that this administration may at some point simply decide to disregard their rulings, which would truly throw the nation into crisis. And so many of them seem to be making their decisions not based simply on the law and the constitution, but strategically, to avoid poking the bear.

There are still pockets of the judiciary that don’t seem keen on remaking the US into a monarchy or an autocracy. And that’s why the judges are now such a target of this administration, and especially of Miller. He has accused judges of “legal insurrection” for ruling against the administration. Back in February, Nayib Bukele, the autocratic leader of El Salvador, tweeted, “If you don’t impeach the corrupt judges, you CANNOT fix the country,” to which Elon Musk approvingly replied, “Unfortunately, as President Bukele eloquently articulates, there is no other option. We must impeach to save democracy.” I will be pleasantly surprised if, by the end of four years, this administration has not attempted to impeach judges. I will be shocked but relieved if they follow court orders.

We are not in a good place. So many of our guardrails have fallen, and so many of our institutions have failed. The Democrats are largely toothless. Average citizens are exhausted. Our greatest resistance heroes are a bunch of bopping inflatable frogs. This is a moment when we need judges and courts not to “resist” for the sake of resistance, but to rule impartially and fairly — to follow the law, to put the constitution first, and refuse to obey in advance.

xx Jill