The Courts Are Not Going to Save Us

The unfortunate reality is that the courts have been captured by the right, and no longer serve as “a bulwark” against authoritarianism.

In many ways, the second Trump administration isn’t much different than the first – chaos, bigotry, abuses of power, all the authoritarian hallmarks Trump is known for. But there is something about this second version that feels darker, and more vicious. The pace of Trump’s dismantling of our democratic institutions feels more relentless this time, and the speed with which Elon Musk and his acolytes from the so-called Department of Government Efficiency have dismantled the safety net is terrifying – both because of the harm it has caused and will cause, and because it shows just how delicate our constitutional order really is.

An attack of this magnitude requires a response of equal measure – someone needs to fight back. Grassroots activists are doing their part, but it appears too many Congressional Democrats are hoping a different branch of government will step in to respond instead.

But the unfortunate reality is that the courts have been captured, and no longer serve as “a bulwark” against authoritarianism. Our judiciary has been targeted by the well-financed right-wing activists over the last 50 years, who have spent untold millions of dollars to install right-wing judges and justices who are committed not to the law or the constitution but to achieving partisan aims. Judges who issue rulings to billionaires and then accept lavish gifts and trips from those who benefit from them; justices who revoke our civil rights during the day and then toast themselves on their benefactors’ yachts at night.

It could not be more clear: the courts will not save us. They will not get us out of this mess, because they got us into it in the first place. Trump himself has hand-selected three Supreme Court justices, and they – along with the rest of the MAGA majority – have repeatedly ruled in his favor. In no case is their loyalty to Trump more clear than their ruling in a 2024 case fittingly titled Trump v. United States, where the MAGA justices ruled that Trump was broadly immune from criminal prosecution for any crimes he commits as President of the United States.

Not only did this decision allow Trump to avoid sentencing in his criminal trials for which he had been found guilty, thus paving the way for him to be elected president again, it also, clearly, supercharged his belief that he can do whatever he wants without facing a single consequence.

In her dissent in Trump v. United States, Justice Sonia Sotomayor warned:

The long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.

Organizes a military coup to hold onto power? Immune.

Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

Sound familiar? Trump’s boldness and fearlessness as he illegally shuts down agencies, fires federal workers, hands over sensitive personal information to Elon Musk, is obvious. And it could not be more obvious that the reason Trump is behaving with such reckless disregard for our democratic institutions is because he knows there are few, if any, guardrails left to stop him. Trump molded the courts in his image, and he knows they work for him.

Just look at this exchange between Trump and Chief Justice John Roberts at Trump’s joint address to Congress:

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A post shared by @couriernewsroom

“Thank you again, I won’t forget.” It is clear what this means. The Supreme Court of the United States gave Trump a gold-plated get-out-of-jail free card, and Trump is using it with zeal.

And when the courts don’t work for Trump, he does not take it in stride. Instead, he threatens impeachment, judicial purges, and retribution to any judge he deems insufficiently loyal to him and his MAGA project. He’s even started to ignore court orders he doesn’t like. Trump’s rhetoric has been so intense that federal judges report fearing for their safety, and even the Chief Justice issued a statement saying, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” although that doesn’t mean much coming from the man who authored the opinion that kicked off this crisis in the first place.

The courts won’t save us because the courts are already lost to us. We are in a constitutional crisis. This is not the time to play dead, this is the time to fight back. That’s why United For Democracy has launched our SCOTUS Nerve Center, to provide critical resources about how to fight back against a judiciary that is on the attack. The right-wing actors who captured our courts never lost sight of their goal even when they lost elections, and we can’t either. The stakes are too high to give up now.

Meagan Hatcher-Mays is a lawyer and democracy expert who serves as as senior advisor for United For Democracy. She lives in Washington, DC.