The Legal Battle Over Liberal Democracy

With heightened political confrontations, the role of the judiciary as the guardian of liberal democracy faces growing scrutiny in the United States. The Trump administration's revolutionary push to dismantle the "deep state" raises critical questions about the interplay between executive power and judicial oversight. America can draw lessons from Europe; both its history in the twentieth century and in the recent battle over the rule of law in states like Hungary and Poland. But the American people must not put all its confidence in the judiciary. Without support from the people and its politicians, liberal democracy and the rule of law is at peril.

Ten years ago I wrote Judges Against Justice, a book that explored concrete situations in which judges are faced with a legislature and an executive that consciously and systematically discard the ideals of the rule of law. Little did I know that only 10 years later, the study would be relevant for an analysis of developments in the United States. Using the examples of Nazi Germany and western European countries under the regime’s control during World War II, South Africa under apartheid, and military dictatorships in Argentina, Brazil, and Chile, the book examined the endurance of the rule of law when under attack.

Methods of undermining the rule of law

Authoritarian rulers have used appointment of sympathetic judges through purges of the judiciary and court packing, reorganization of the court system, and the establishment of special courts to compel the submission of judges. Another important measure deployed by these regimes was to limit access to the courts by limiting the scope of the competence of the courts to review acts and decisions by organs and agencies of the state.  When handpicking judges and limiting the scope of judicial review did not suffice, there were other means at their disposal. Authoritarian regimes rely on a wide range of mechanisms to convince, persuade, and coerce judges to apply their legal minds to the benefit of the regime. Finally, an authoritarian regime will often just plainly disregard legal rulings that run contrary to their policy.

Taken together, these measures constitute a script or a textbook for rulers who aim to undermine the rule of law. Measures taken by the Trump administration seem to be straight out of such a script. They seek to limit the scope of judicial review over measures enacted by or at the order of the president, they handpick judges and threaten to remove others, they attack and harass individual judges, and they disregard rulings that hamper the execution of their policies.

Limiting the jurisdiction of the judiciary

Trump’s post of February 15 on Truth Social and on X, “He who saves his Country does not violate any Law,” is well known. This has by observers been taken as a claim of power to override legal limits. A few days earlier, Vice President Vance had posted to his account on X that “Judges aren’t allowed to control the executive’s legitimate power.”

Trump repeated this view after a judge ordered the Trump administration to cease use of an obscure wartime law to deport Venezuelans without a hearing, saying that any deportation flights that had departed the United States needed to return. The case turned into a legal battle over whether the administration had complied with this order or not, as two planes with deportees landed in El Salvador well after the judge had issued his order.

Reacting to inquiries by the judge, Trump posted on his social media: “If a President doesn’t have the right to throw murderers, and other criminals, out of our Country because a Radical Left Lunatic Judge wants to assume the role of President, then our Country is in very big trouble, and destined to fail!”

The government keeps arguing that judges are overstepping their jurisdiction when they put a check on executive powers. Constitutional lawyers of the right are arguing the doctrine of “departmentalism—the Founders’ view that the officers of each branch of government have a duty to interpret the Constitution as they understand it.” Even decisions of the Supreme Court are not truly the final word on constitutional interpretation under this doctrine.

Selection of loyal judges – and deselection of the disloyal

Political appointment of judges is a well-established system of the United States federal order. Extensive research suggests that how judges are selected has significant implications for judicial independence and decision-making. Trump is well aware of that. The republicans managed by cleaver maneuver and luck to appoint three judges to the Supreme Court during  first presidency; Gorsuch, Kavanaugh and Barett.  Trump also extended the politization of appointments to the entire federal judiciary (Abel p. 218).

After a ruling that went against him, Trump blasted the judge, Jon S. Tigar, as a biased “Obama judge. This resulted in a rebuke from Chief Justice Roberts. In response, Trump tweeted on X that “you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” In the recent controversy over the deportation of Venezuelans, Trump denounced Judge James Boasberg as an Obama appointee.

The other side of the coin when it comes to the selection of loyal judges is the deselection of judges who oppose. In the same Truth Social post targeting Judge Boasberg, President Trump stated that the judge should be impeached. Republicans in Congress have announced plans to impeach several judges.  Beyond Boasberg, they’ve announced plans to impeach: Judge John McConnell, who halted the administration’s blanket funding freeze; Judge Amir Ali, who resumed foreign aid payments; Judge John Bates, who restored scrubbed online health data; and Judge Paul Engelmayer, who prevented Elon Musk from accessing Treasury Department payment systems.

Attacks and harassment

President Trump himself has chided and harassed individual judges on social media. His Truth Social post calls Judge Boasberg a “Radical Left Lunatic Judge”. He has called Judge Tanya Chutkan in Washington, D.C.  “the most evil person” and Judge Arthur Engoron of the New York Supreme Court a “political hack.” Such public rebukes are dangerous as they incite and encourage threats and attacks on judges. Chief Justice Roberts addressed such attacks on judges in the 2024 Year End Report on the Federal Judiciary, mentioning (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments as ongoing threats to judicial independence.

Judges and prosecutors have repeatedly been facing threats of violence as they handle cases related to Trump. The voluntary Federal Judges Association has issued a statement regarding a rise in criticism, threats and violence aimed at members of the judiciary.  They state that “Irresponsible rhetoric shrouded in disinformation undermines the public’s confidence that our justice system can fulfill its constitutional duties.”  This underlines the seriousness of posting abuse of judges on social media by the leader of the administration.

Defiance of judgments

Judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees, Chief Justice Roberts states in the 2024 report. We have seen many instances of the Trump administration evading legal orders and even outright defiance. In many cases the administration finds legal sidesteps, such as claiming that they have reviewed cases of termination individually after a judge’s freeze order, that they have other legal basis for not fulfilling payments that have been ordered resumed and so on. The result is that many of the judicial restraining orders put on government measures have been without effect.

Towards the Dual State

The push for executive power and limiting  of the courts’ jurisdiction are reminiscent of what the German-American lawyer and political scientist Ernst Fraenkel in 1941 labelled the Dual State. The dual state is a mode of governance where tyranny expands and rules without a dismantling of the courts and with independent judges performing their functions as before.

Central to Fraenkel’s theory is the prevalence of what he called the normative state despite the rise of the political and oppressive prerogative state. By the prerogative state Fraenkel referred to the “governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees”, and by the normative state “an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions of the courts, and activities of the administrative agencies”.   Both existed simultaneously, but the normative state existed under the acquiescence of the prerogative state. The prerogative state defined its own limits and could overrule decisions made within the normative state.

This is the end of the rule of law. In the dual state, there are no limits to the powers of the government other than those it chooses to accept, with the pretense of government by the rule of law being upheld within the normative state. The Dual State is a theory that has been proven in many historical instances with well-functioning judiciaries, such as Italy, Germany, South Africa, Chile, Brazil, and Hungary.

The role of judges

Americans should be worrying about a coup, and presently the only thing that may prevent one is if judges stand up to Trump and civil society and enough members of Congress join. But is it enough? Judges often initially react to attempts by the executive to assert unlimited power. Unknown to many, this was even the case in Germany after the violent Nazis came to power. It is well known the judiciary was subdued and became the “horrible lawyers” in the words of the German author Ingo Müller.

What is less noticed was that in the beginning the new regime did meet with some opposition from the judiciary. A cause célèbre is the case of the Reichsgericht after the fire in the Reichstag on December 23, 1933, where four of the five accused were acquitted by the court due to the lack of evidence. The four were known communists, and Hitler and Göring were expecting a show trial to do away with political opponents.

The Prussian Administrative Court held onto the principle of legality for some time by interpreting both old laws and laws passed by the Nazi regime narrowly, thereby curbing the power of the authorities. The Prussian Administrative Court maintained this line throughout the 1930s and until the court was abolished in 1938 and replaced with a Reich Administrative Court.

Initially, prosecutors and judges reacted against the misuse of power and the atrocities in the Concentration Camps. In 1935, however, Hitler confirmed that the camps could operate outside of the law, pardoning the SS men. This brought an end to legal proceedings in regular courts against operations in the camps.

In the first years, there were several instances where judges refused to apply the Nazi anti-Semitic worldview and continued to treat Jews as ordinary legal subjects. This even prevailed as late as in 1941 in the famous Berlin coffee case. Willi Seidel, a judge of one of Berlin’s county courts, refused to fine 500 Jews who had tried to collect coffee after the city authorities had announced extra coffee rations for the population. He was expelled from the Party and moved from the criminal to the civil bench due to his “lack in political attitude through a serious misconception of the Jewish issue.”

It is crucial to American democracy that judges keep up their resistance against the expansion of presidential powers. As the battle intensifies, more severe attacks on judges and the judiciary must be expected. The fear that judicial orders will be circumvented or disregarded may lead judges to exercise undue caution in challenging the president. A Supreme Court majority sympathetic to Trump’s agenda may effectively silence the rest of the judiciary.

The Spirit of Liberty

The future of liberal democracy in the United States is at stake. Judges are an important line of defense, and their actions in the near future will be decisive for the future of the United States. This may require courage as the pressure on the judiciary and on individual judges increases. The hope is that there are enough heroic judges in the federal judiciary.

But judges cannot win the battle alone. In the spirit of the brave judges of Poland, they must unite. The recent initiative from the federal judiciary creating a task force is encouraging.  The legal profession and the bar must engage in support of the judiciary and the rule of law. The ABA issued a statement several weeks ago. In addition, lawyers should mobilize in support of law firms targeted by Trump’ sanctions, and meet them with a collective boycott of work for the federal government. A free legal profession, without interference by the government, is essential to the rule of law.

What one should really like to see is people taking to the streets in support of judges. This might seem a long shot, but as the enduring protests in Israel have shown, it is not unthinkable. The Polish judges were supported in their battle by civil society organizations, along with people in the streets.

One is well advised to head the words of a former well-known American judge, Learned Hand, in his Spirit of Liberty speech of 1944:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Hans Petter Graver is professor of law at the University of Oslo, Norway. His fields are administrative law, sociology of law and legal ethics. He has written extensively in all these fields. His latest books are Valiant Judges, Iniquitous Law and Democracy and Lawlessness: The Penitentiary Laws and Civil Disobedience in Norway 1928-1931. He is member of Academia Europeae.

Importance of the Courts, Rule of Law