Courts and the Trump administration: Obi-Wan Kenobi saving us or speed bumps?
One month into the second Trump administration, it has become the conventional wisdom that the courts are the only real forum for the opposition. Democrats are locked out of power in the House and Senate. Democratic governors can’t do anything about the assaults on the agencies and employees of the national government. The victims of the government’s self-dismantling are too scattered to mount effective opposition in the streets.
What can we expect from the courts, though? Sometimes it seems as if the right metaphor for the courts is “Star Wars” — “Help us, Obi-Wan Kenobi, you’re our only hope.” The courts, on this view, will step in and stop the worst excesses of the Trump administration.
The initial successes of litigation against the administration seem to support this view — scorecards so far show many more wins than losses for the opposition. Many are skeptical, however. Initial successes might be overturned on appeal. The courts might block some administration initiatives but let others, perhaps more damaging to the polity, go forward.
The courts of appeals are roughly evenly divided between Republican and Democratic appointees, and victories before a favorable district judge might be overturned by panels on the appeals courts. Then of course there’s the Trump-dominated Supreme Court.
No matter what happens at the end of the road, litigation takes time, during which the Trump administration will be eroding the foundations of our democracy. Obi-Wan Kenobi might not try to save us, or he might arrive too late to matter.
Underlying all this is a concern that only a nation’s people can save itself.
The slow pace of litigation suggest that we should use a different metaphor. Scholars of authoritarian takeovers of democratic governments say that institutions in place when attacks on democracy begin aren’t firewalls that prevent disaster. They’re more like speed bumps that slow down the pace at which proto-authoritarians are able to put their programs in place — the pace at which Trump can dismantle the government.
Here too scholars have come up with important evidence. Courts as firewalls basically don’t work. You can count on the fingers of one hand the nations where courts effectively blocked or reversed an authoritarian takeover.
The evidence also shows that speed bumps sometimes work — not always but often enough to make the strategy of going to court sensible in conjunction with other ways of blocking takeovers or when other ways aren’t readily at hand.
Speed bumps work when they do because they give the opposition time to get its act together. It takes time — more than a month — to figure out what political strategies are going to work against a nation’s proto-authoritarians. When lawsuits slow the takeover, opposition politicians have a chance to think about and even test alternative strategies they can use when they don’t control any formal levers of power.
When things slow down, outside events can help derail the takeover. I’m not an insider to discussions about opposition strategies but I get a sense from what political journalists have written that Democratic politicians are hoping that Trump’s policies are going to fuel inflation and weaken his political support.
They also seem to be holding their breath to see if they can break Trump’s grip on Congress when House and Senate Republicans have to come up with a budget and tax and spending bills that Democrats believe can’t accommodate the few but crucial non-MAGA members of Congress within the Republican Party.
Trump’s opponents should celebrate every victory in court and use the time those victories provide to work out a policy agenda that includes but isn’t limited to preserving democracy. And then remind their supporters that only the people themselves — not the courts — can effectively protect democracy from an authoritarian takeover.
Mark Tushnet is the William Nelson Cromwell Professor of Law (emeritus) at Harvard Law School. He is a former law clerk to Justice Thurgood Marshall.
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