Heather Cox Richardson Gets a Gratis Graphic

Why the courts can't save us--alone

On March 20, the day DOGE came to dismantle the federal agency that helps support public libraries in America, per yet another of Trump’s Executive Orders, Heather Cox Richardson gave us this revealing passage in her Letters From An American:

Also today, U.S. District Judge James Boasberg, who said the government could not use the 1798 Alien Enemies Act to justify sending migrants to a prison in El Salvador, appeared to be out of patience with the government’s obfuscation of what actually happened in the process of that rendition last weekend. Boasberg’s order today laid out that he had repeatedly asked the government to provide information about the flights but that the government had “evaded its obligations,” providing only general information about the flights and appearing to cast about for further delays.

“This is woefully insufficient,” Boasberg wrote. He required that the government explain by March 25 why its failure to return the flights as ordered did not violate the court order to do so. Far from backing down, the administration appears to be considering escalating its fight with the courts. Devlin Barrett of the New York Times reported today that lawyers in the Trump administration believe the 1798 Alien Enemies Act Trump used to deport migrants also permits federal agents to enter people’s homes without a warrant, an assault on the Fourth Amendment to the Constitution.

The Trump White House and its MAGA supporters appear to be trying to cement their power to control the government by undermining the rule of law and the judges who are defending it. White House press secretary Karoline Leavitt yesterday called Judge Boasberg a “Democrat activist,” although he was originally appointed by President George W. Bush, and badly misrepresented Boasberg’s order. She also attacked Boasberg’s wife for her political donations.

In Talking Points Memo this morning, David Kurtz recorded how MAGA supporters Elon Musk and Laura Loomer have attacked Boasberg’s daughter, and in Rolling Stone, Andrew Perez and Asawin Suebsaeng noted that that the Attorney General of the United States, Pam Bondi, accused Boasberg of “attempting to meddle in national security,” adding: “This one federal judge thinks he can control foreign policy for the entire country, and he cannot.”

Last month, Vice President J.D. Vance wrote that “[j]udges aren’t allowed to control the executive’s legitimate power,” trying to obscure that it is the role of courts to determine whether or not the power the executive is claiming is, in fact, legitimate. On the Fox News Channel, “border czar” Tom Homan said: “I don’t care what the judges think.”

Kurtz noted that Representative Jim Jordan (R-OH), who chairs the House Judiciary Committee, has promised hearings on the many injunctions against the Trump administration. Kurtz also noted that angry Trump supporters have called in bomb threats against judges who have stood against Trump’s excesses, including Supreme Court Justice Amy Coney Barrett, and have sent anonymous pizza deliveries to the homes of judges and their relatives as a way to demonstrate that “we know where you live.”

Perez and Suebsaeng reported that the White House’s strategy is to “move fast” before courts can stop them. In the end, one source close to the president told them that the president’s ultimate power over judges comes from the fact that they do not command an army, while he does. “Are they going to come and arrest him?” the advisor asked, apparently confident that the answer is no.

The attack of Trump and his MAGA supporters on the courts and the rule of law has illustrated how quickly the United States is sliding from democracy to authoritarianism. “Honest to god, I’ve never seen anything like it,” Harvard political scientist Steven Levitsky told Amanda Taub of the New York Times. Along with his colleague Daniel Ziblatt, Levitsky wrote How Democracies Die. “We look at these comparative cases in the 21st century, like Hungary and Poland and Turkey. And in a lot of respects, this is worse,” Levitsky said. “These first two months have been much more aggressively authoritarian than almost any other comparable case I know of democratic backsliding.”

Let’s break this down.

The Legal Fight

Here’s the courtroom battle on whether or not the US government can just grab up people off the street with no show of sufficient evidence, cause, proof, anything, and not “deport” them (because deportation is a whole legal thing bound by rules that results in sending folks back to WHERE THEY CAME FROM and not to A FORCED LABOR CAMP IN A COMPLETELY DIFFERENT COUNTRY).

Dahlia Lithwick’s Amicus podcast interviewed Quinta Jurecic, a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare, who explained some of the background to the whole showdown with Judge Boasberg. Somehow, the ACLU caught vibes that the administration was going to whip out an EO against Venezuelans and try to disappear them, so they rushed to court to prevent that, perhaps putting the kibosh on what otherwise might have been a fait accompli for Trump’s evildoers. So here’s the graphic breakdown with that background:

The Political Fight

Let’s focus in on that last block. I know things have progressed a bit since then, but we’re focusing on the March 20 dispatch from Heather Cox Richardson here to make a point.

In the wake of Boasberg’s upset and demand for answers, where he—in accordance with fairness and legal norms—gave the government time to respond to his order, came the deluge of attacks on Boasberg himself and the entire concept of the rule of law in this country, by just about every outlet in the right-wing media complex.

Just pulling from the sample Cox Richardson gives from that single day’s reporting,¹ we get this graphic:

The entire right-wing media ecosystem lurches into action to discredit, smear, and assault the judge, lying about him, bringing his family into it, sending signals to the unstable and increasingly violent base to maybe do something about him, distorting how checks and balances are supposed to work, utilizing the captured majority of one of those branches (the GOP in Congress) and the richest man in the world who owns one of the most powerful media outlets on the planet. And they all, simultaneously, go on the offensive.

Judges are generally not supposed to acknowledge, much less rely on, these political statements, at least as reported in the press or in tweets, even by government officials, when calculating whether or not DOJ lawyers and the Administration they are representing in court are fucking lying to them, stringing them along, acting in manifest bad faith, waging a macro-campaign to undermine one of the three pillars upholding American democratic government and its accountability.

They are supposed to focus, narrowly, on the properly formatted legal arguments in the briefs in light of laws, protocols, procedures, and norms of conduct and deference and try to ignore the political branches’ bloviating and posturing, as politics is allegedly a separate sphere from what the law is and does and says—at least that’s the great myth of the courts, that they are apolitical and insulated from the ebbs and flows of slug-it-out infighting in the arena of public opinion. The law is the law and we are ruled by laws, by jiminy.

But what is happening is a massive effort to change that foundational story. And judges are professionally, ethically, normatively, in some cases legally prohibited from even countenancing such a broad campaign to cut the legs out from under the rule of law entirely. They have their jurisdictions, their circuits, their bailiwicks, their proper venues. They have their designated forums and proper perches. Everything they do is bounded by what’s supposed to be the case, and these folks are mounting an all-out war on everything that’s supposed to be. If a judge were to stand up, look around and say, from the bench, what is manifestly going on, he or she would likely be sanctioned, removed, forced to recuse, maybe even impeached for such a gross breach of a thousand different rules of conduct—first, because judges (unless auditioning for SCOTUS seats before this President) are so tightly bound by the supposed-to-be regime, and second, because the backlash to such truth-telling would be absolutely nuclear despite the tidal wave of vitriol pouring down on judges like Boasberg simply doing their jobs within the rules of their profession.

Are We Screwed?

Does this mean we’re hosed? By itself, no. But the answer is just a reflection of the problem.

The problem begins with the capture of the separation of powers by political parties (loyalty to party over loyalty to the nation and its structures of mutual checks and balances). The problem gets worse when one party is so captured by a faction of ultra-right lunatics (MAGA and its disparate allies). Things get even worse when that party runs the table and controls both houses of Congress, the Presidency and the Supreme Court as well as huge swaths of the media. Then it allows the Executive to seize the power of the Legislative branch (impoundment, departmental creation and destruction, etc.), and shrugs everything off to the courts, then demonizes those courts when they try to preserve the balance, ignoring and slandering and threatening and disappearing people who protest and dissent and object, calling them unAmerican, criminals, paid outside agitators, etc.

In the same way all these capitulations and captures are connected, the answers are connected as well. Courts alone cannot save us. They can do their part, but that part is extremely limited. Looming over all the Judge Boasbergs is the Supreme Court, and those corrupt sumbitches might just be susceptible to a few things, like, for instance, a massive public movement opposing all this shit in every way possible, threatening not just the Court’s “legitimacy,” but the entire right-wing project going forward for generations. If Trump’s numbers are in the toilet … if Musk’s Tesla wealth-base tanks … if crowds continue to grow for solidaristic, progressive populist rallies like those AOC and Bernie are holding through the provinces … if angry constituents keep giving electeds hell in every way they can … in other words, if every connected counterforce stands up and says No to all this authoritarian seizure of a country that sometimes doesn’t entirely suck and could, conceivably, be a legitimately decent place, then efforts from the courts could matter, have more weight and power. Efforts from boycotts could have the same. Efforts from rallies, same. Efforts from town halls, same. And so on.

Just as the Right is leveraging all the interconnected dysfunctions and vulnerabilities to pile on against democratic government, we could leverage all the interconnected strengths we still have to fight back, thus bolstering each individual part of what remains of the salvageable parts of the system, like the notion that Presidents aren’t kings and must follow the law and be bound by it just like anybody else.

Will this happen? I’m not super optimistic, but that’s what it will take.

1. And one reminder, of Vance’s remarks a month prior.