A State of Emergency or a State of Courts?

The Washington Post reports this morning, “If President Trump declares a national emergency to construct a wall on the southern border, only one thing is certain: There will be lawsuits. Lots of them. From California to Congress, the litigants will multiply.”

One of several elements of our time that I don’t think proponents of the authoritarianism or fascism thesis truly confront is just how much of Trump’s rule is mediated and ultimately decided upon by the courts.

Whenever Trump does something, everyone automatically assumes (and rightly so) that whether he can do it or not will be settled not by his violence or the alt-right’s strongman tactics or white supremacist masses in the streets but by an independent judiciary.

Now courts can be purely ornamental instruments of an authoritarian regime, that’s true. Judges can be terrorized into supporting a strongman or a fascist party. They can be bought off. Authoritarian rulers can fire or imprison or murder judges and simply replace them with toadies.

But that’s not what we have here. The judges who rule on Trump’s actions are both liberal and conservative; sometimes the former prevail, sometimes the latter. All of them have been duly appointed in accordance with a process (we can argue about Merrick Garland and Gorsuch, but there have been hundreds of judicial nominations or appointments under Trump that have been procedurally sound). However much their critics may not like their rulings, they are, for the most part, the standard judiciary you would see under a composite of Republican and Democratic presidents.

More important, as I said, we all of us in the United States, still assume that these judges and justices will have the last word on Trump’s rule. Not browbeaten or bribed judges and justices but independent judges and justices. Trump is not the decider of his own rule, in other words; the courts are.

For all the sense that Trump has transformed America, then, we still live in an America that looks remarkably like what Louis Hartz described in 1955: a country where “the largest issues of public policy should be put before nine Talmudic judges examining a single text.”


  1. mark February 15, 2019 at 9:15 am | #

    We are certainly not in Thomas Carlyle territory.

  2. Ed Dupree February 15, 2019 at 9:42 am | #

    True enough, Corey. Liberal democracy is probably not in the immediate danger that many Trump-alarmists imagine. Yet all those liberal and conservative judges sit comfortably within the liberal/conservative (i.e.capitalist) consensus, upholding our Holy Constitution. So, for working-class socialists like me, all is far from well. It’s a point I think worth harping on.

  3. Jon Eddison February 15, 2019 at 10:22 am | #

    Professor Robin is too optimistic. Read Linda Greenhouse’s article in yesterday’s NYT. McConnell continues W’s court-packing with Federalist ideologues. Look at the Fifth Circuit for openers. Trump has a reasonable chance of getting a “unitary executive” holding in this litigation.

  4. Tom shapiro February 15, 2019 at 12:30 pm | #

    What the “populists” of the left and right fail to understand is that to balance normative liberty and equality before the law, the Constitution reflects the Founders’ deep fear of the unbridled power of unchecked factional rule.
    The political party became the most powerful factional threat to the liberty and equality they sought to preserve. In each form of government rule by an unchecked faction—a King, Aristocracy, or the people themselves— the founders saw the future descent into tyrrany. The tyrrany they feared most was the tyrrany of majority rule.

    They created two constitutional weapons to thwart it: the justly famous checks and balances, and the bill of rights that protected the rights of minority factions threatened by tyrranical rule of popular majorities.
    The federal courts they created were the ultimate check on political parties, presidents, Congress, and the states intoxicated with the temporary power a majority of the people had granted them.
    Like Prometheus, the courts became the chains the tyrrany of a temporary majority could not break. When the judges elevate their ambition, ideology, or self and party interest above their oath to defend constitutional government, then the gates are opened for a tyrant to lead the majority frusted with constitutional restraints on power. Yes, it can happen here.

  5. Michael Vavrus February 15, 2019 at 12:34 pm | #

    However, Trump is being successful in having rightwing, authoritarian-sympathetic justices as recently passed by the Senate. https://www.cnn.com/2019/02/07/politics/senate-judicial-nominations/index.html

    • Jim February 17, 2019 at 11:43 am | #

      Agreed but this didn’t start with Trump, of course. Since Reagan, successive Republican presidents have appointed judges with a decided ideological bias towards oligarchy, autocracy and the erosion of human and civil rights. The independent federal judiciary is deliberately being degraded.

  6. Billikin February 16, 2019 at 8:38 pm | #

    If the tyranny that the founders of the US feared most was the tyranny of majority rule, why did they make sure that the US has no aristocrats?

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