As the Trump administration continues to dismantle the federal government, we are all wondering if any of this can be reversed or even stopped. Obviously, the supine GOP-led Congress isn’t going to tap the brakes, which leaves the judiciary. Early rulings seem positive, and institutionalists on both sides are hoping judges save the day. Indeed, this has become the singular political battle of our time. In our conceptual hierarchy of authority, we tend to see capital L law as the sovereign, and grubby politics its embarrassing vassal. That isn’t and has never been the relationship, though, and constitutional law has always been entirely conceptual, provisional, and nonbinding. We should consequently reconsider not just how much hope to invest in the court cases, but how much we invest in the “law” as anything but an instrument of political will.
The U.S. Constitution is a weird document. As the beta version of a democratic constitution, it rests on entirely untested assumptions the framers held. They got the fundamentals right, recognizing that power concentrates, but misunderstood how that might play out. Today we talk about parties as the fulcrum of power. The founders didn’t foresee that.
They thought that by establishing co-equal branches of government, those entities would jealously protect their turf—Congress versus the President, not Democrat versus Republican. As James Madison put it in Federalist 51: “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” This is the foundation of the Constitution’s system of “checks and balances.”
Of course, parties eventually upended the power dynamics the framers intended to undermine, but even by its own logic, the constitution was flawed. The first unintended consequence materialized almost instantly: in a government with three entirely equal branches, who has final say when different branches get in a scrap, as they did in 1801? The answer came in 1803 in the Marbury vs Madison case, which Wikipedia summarizes very nicely:
“Marbury v. Madison was a landmark decision of the U.S. Supreme Court that established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States. Decided in 1803, Marbury is regarded as the single most important decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political principles and ideals. It also helped define the boundary between the constitutionally separate executive and judicial branches of the federal government.”
That sounds comfortingly final, doesn’t it? In reality, it is no more than a handshake agreement among leaders, one revocable the moment a sufficiently bold president says, “Yeah, nah.” We will probably see how meaningless this arrangement is when the Trump administration decides to ignore a court ruling. Exactly which soldiers will the Supreme Court dispatch to enforce it? The Supreme Court’s authority rests on the president’s agreement not to challenge it. Which, well…
It is a stinging irony that the person who saw through this fiction was Donald Trump, a man so ignorant and incurious he understands very little else about governing. His own legal adventures taught him that the law isn’t a quasi-scientific program that churns out findings based on the facts plugged into it—though this is the way most of the legal and political establishment sees it. He has known for decades that it is a lump of clay waiting for the strongest forces to mold it.
The assertion of an objective law has always been refuted by its application. The Dred Scott case, which established that Black people could never become US citizens, was an early standout in politics masquerading as law, but there have been many more.
I’ve always been amazed the interpretation of our various Bill of Rights hasn’t been the subject of more existential panic, to take another example. Consider the ways the second and fourth amendments were interpreted. In the 2nd, we have landed on an interpretation that expands the (poorly-written) text to guarantee each citizen the right to bear just about any gun they wish. This is not present in the language of the text, nor did the framers argue that interpretation at the time. So here the Court has used a maximal interpretation of liberty to serve certain political goals.
In the 4th, however, which was supposed to protect against unreasonable searches and seizures, the Court has whittled away the clear-text protections to the point where cops now burst into people’s homes in the middle of the night, guns blazing. They have been permitted extremely broad latitude to search private property—cars and homes—and if they suspect a citizen of a crime, seize and sell that property before the accused has been convicted. In this case, the amendment has been substantially limited, again to serve political goals.
Which means: the law isn’t going to save us. For forty years, conservative advocates have advanced increasingly fringe legal theories, many of which have in time become the law. They’ve spent millions advancing jurists who are faithful to their beliefs, rather than independent legal thinkers. GOP-appointees are, in other words, politicians in robes (google “federalist society” for more). One of their bedrock beliefs is that the bulk of the federal government is illegitimate, and they have been attempting to use the judiciary to dismantle it for decades. Six of the nine Supreme Court justices are Federalist Society judges in good standing, as well as about half the judges in lower courts. Trump is currently attempting to <check notes> dismantle the federal govenment. So don’t be surprised if they somehow find a way to call Trump’s measures “constitutional.”
Trump’s actions will take years to work their way through the courts, and he’ll suffer the kinds of setbacks he has the past couple weeks—but lower-court stays are hardly the last word. The Supreme Court may try to restrain some of the administration’s especially bad acts—they did this in Trump I—but they will be substantially in favor of his intent, if not his ham-handed legal rationalizations. And I do expect that an unrestrained Trump is itching for an opportunity to defy the courts altogether. So no matter how compliant they are, don’t be surprised to see that if the Supreme Court tries to inhibit Trump, he will ignore them.
I can’t imagine anyone is still reading this, but one more point. Lawyers always have arguments. As non-employee Elon Musk is rooting around our most protected information, the administration has arguments. In 2020, his legal team tried to overturn an election. Again, they had briefs and arguments that, despite getting fewer votes, Trump nevertheless somehow won the states he lost. No matter how indefensible an act is, attorneys will defend it. That’s their job.
We mortal humans, and this is especially true of the press, don’t have the technical knowledge to parse these arguments. The law is, by design, a he-said, she-said proposition. It’s not like one side is going to stand up and say, “Look, we know our case is as bogus as it is stupid, but we’d still like you to rule in our favor.” We are going to have to listen to the argument and make that judgment ourselves. The media definitely won’t do this, and most Americans can’t do this.
In healthy democracies, people can trust the judicial process. We don’t have to know what the case law is, what the precedents are, what the constitution says, because the courts will sort that out. Most Americans still believe we live in a functioning democracy, so as rulings emerge in the coming years, we will accommodate ourselves to them. That is what we have done since 1803. It’s baked into the cake of our democratic system. And it will mean that most people will accept the rulings, the way they did Plessy and Dred Scott and Korematsu and Bush v Gore and Citizens United and Dobbs and Trump v US.
This is what humans do: we accept and adapt. We have seen a similar dynamic in Russia, Hungary, and Turkey (etc). The Supreme Court’s approval ratings will drop, and Americans will report that they think the justices are partisan, and they’ll accept the rulings because, after all, what’s the alternative?
The alternative is to recognize that the judiciary was never more than a gentlemen’s agreement and that it has no special powers that place it above politics. That it is a function of politics. I would encourage everyone to come to that recognition sooner rather than later, and in the meantime 🤞.
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