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.”