When the courts can’t save us, who can?

In nearly two and a half centuries, American democracy has faced its challenges, and in those times, our courts have played a role in saving us from the brink of collapse.

But today, we confront perhaps the most coordinated attack on our democracy yet, and our courts are not designed for the threat that Trumpian authoritarianism poses. We cannot count on them this time.

In just the first two months, the Trump administration has attacked the free press. The president himself has filed lawsuits against CBS News and other organizations.

Once in office, Trump’s Federal Communications Commission opened investigations into CBS and other outlets, banished the Associated Press from the Oval Office for its refusal to call the Gulf of Mexico by Trump's preferred name and hand-picked who would cover the president.

Multiple agencies have opened investigations into dozens of universities under the guise of rooting out antisemitism.

Funding for researchers at universities and other nonprofits has been eliminated in violation of the law. Government employees have been fired in violation of federal law and the president has fired heads of independent agencies and others he does not have the power to remove, including the very individuals whose jobs it is to address unethical and corrupt behavior in the executive branch.

The administration has stonewalled courts and worked to avoid disclosing information to justify its factual claims in litigation.

The executive branch has claimed for itself the power of the purse, defying both the Constitution and federal laws that specifically say that Congress determines how much money shall be spent on which programs.

And, perhaps most notably, the executive branch has seemingly defied multiple court orders, deporting Venezuelan citizens under the Alien Enemies Act and a doctor from Brown University who specifically had been ordered not to be deported without 48 notice being given to the court.

Taken one at a time, clever lawyers might be able to make a case — even if ultimately unsuccessful — about why there is a plausible justification for any one of these moves. But the magnitude of the threat and the legal and constitutional implications of each can only be understood when understood as part of a coordinated effort.

This cohesive look is exactly what courts cannot do, as it requires seeing a legal case in the broader context as part of a political strategy. Courts cannot — and should not — decide cases that way. Courts are not designed to decide cases by considering the context of other things going on. That makes it hard to rely on courts to see the full significance of any one of the administration’s power grabs that might be challenged.

There is a second reason why we cannot rely on courts — one that the recent experience with deportations illustrates. Even if the courts decide the president has gone too far, they do not have much power to force the administration to comply with their decisions.

Politicians do what is in their self-interest, and that usually comes down to what will keep them in power. Hopefully, that's their voters. If the courts matter, then, it has to be the case that the voters know what the courts have ordered the administration to do and they know whether the administration has complied.

One of the most potent powers of the White House is the bully pulpit — the daily media briefings, the power to spin a narrative and influence the story, and shape what the public thinks. In many ways, manipulating the "facts" is Trump's super power.

And even if the administration does not try to mislead us, it may be that Americans cannot know that it is defying court orders, for reasons including that the victims cannot tell us or because the facts cannot be readily verified. That is exactly what is happening in the case of the Venezuelan deportees. The administration is attempting to muddy the waters and make it hard to know whether they in fact blatantly ignored a valid court order.

Taken together, these two features of courts — their limited perspective on cases and their disadvantage in the public arena — present very serious challenges to our ability to rely on courts to save us from the challenges American democracy faces today.

Instead, the very institutions under assault — Congress and civil society institutions like the press, civic organizations and universities — need to stand up.

Authoritarians throughout history and around the globe detest facts, knowledge and truth, as they lead to accountability. The media and universities are the institutions whose very purpose is the preservation, creation and dissemination of knowledge.

Authoritarians also detest empowered masses. Legislatures and civic organizations empower the people by giving the people control over the law and policy. Congress can directly check the president's power and may do so if their voters believe that the future is looking bleak. Many civic organizations have risen to the occasion, but they cannot do it alone.

Just as the attack on democracy involves a coordinated strategy, resistance by civil society needs to be coordinated. Universities, the media and civic organizations should engage in an organized public relations campaign to remind the public of the good they bring.

The public losses that will come from an authoritarian erosion of civic life is part of what will help motivate politicians to stand up to those who would support the destruction of our way of life.

Tom Clark is the David and Mary Winton Green Professor in the Department of Political Science at the University of Chicago and the author of several books on the U.S. courts and the legal system, including “The Supreme Court: An Analytic History of Constitutional Decision Making” (2019). He is the editor of the Journal of the Law and Courts.

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