The MAGA movement is attacking the American judiciary. The evidence is everywhere.
Let’s begin with President Trump. On his Truth Social account, in post after post he has ranted against the judges who’ve ruled against his policies. He has said that judges who rule against him should be impeached. He’s called them “lunatics,” and on Sunday he posted an article by the far-right outlet Gateway Pundit that made the case that federal judges were guilty of “sedition and treason.”
It’s tempting to ignore Trump’s rants as examples of an undisciplined man merely venting, but if there is one thing we know from the opening months of his second term, it’s that his powerful supporters are taking all of Trump’s words very seriously indeed.
On Tuesday, for example, Mike Johnson, the speaker of the House, floated the idea of enacting legislation that would eliminate judicial districts or defund the courts in response to rulings against the Trump administration.
“We do have the authority over the federal courts, as you know. We can eliminate an entire district court. We have power of funding over the courts and all these other things,” he said. “But desperate times call for desperate measures, and Congress is going to act.”
So this is when Congress rises from its slumber? To make sure that Trump is protected from prompt judicial review? This is a telling indication that the Republican Congress exists only to please Trump.
Elon Musk, Trump’s virtual co-president, has called the rulings against the Trump administration a “judicial coup,” has demanded the impeachment of federal judges, and has said the Trump administration should fight against “activist” members of the judiciary.
The list goes on. Stephen Miller posted on social media last week, “Under what theory of the constitution does a single marxist judge in San Francisco have the same executive power as the Commander-in-Chief elected by the whole nation to lead the executive branch?” He called the rulings against Trump “naked judicial tyranny.”
In February, JD Vance posted, “If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”
And lest we think this is all just words, Republican lawmakers have now filed articles of impeachment against several federal judges in response to their rulings.
Trumpists are having a temper tantrum, but it’s a mistake to treat their arguments against the federal judiciary as merely a fit. The second Trump term is substantially different from Trump’s first term in a key respect — the people around him have developed actual legal theories and policy ideas to buttress, direct and channel Trump’s impulses.
And these legal theories and policy ideas make Trump’s second term far more dangerous to the Constitution than his first.
In a nutshell, here’s the Trumpist argument: As Miller put it in a press briefing last month, “The whole will of democracy is imbued into the elected president.” He is the only elected official who represents the whole of the American people, and he embodies the people’s general will. Every member of the House has his or her small, defined constituency. Every member of the Senate is confined to representing a single state. The president, by contrast, is elected by the whole of America.
As a result, Miller argued, he is the best expression of American popular will, and Article II of the Constitution, which vests “the executive power” in the president, gives the president the power to hire staff to “impose that democratic will onto the government.”
Under this theory, the president even has the power to issue definitive legal interpretations that control executive branch functions. As he said in an executive order in February, “The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.”
According to this reasoning, the executive branch is the most democratic branch of government and the most powerful.
By this measure, activist Democrats and activist judges are subverting the constitutional order by intruding into the executive’s core functions, and they’re doing it in a particularly pernicious way — through forum shopping and nationwide injunctions.
“Forum shopping” refers to the practice of filing lawsuits in the friendliest possible district. For Democrats, this often means filing lawsuits in California. Republicans file lawsuits in Texas. The hope is to argue your case in front of a friendly judge, secure an order from the court that blocks the president’s policies nationwide, and at least secure a monthslong delay in the policy’s going into effect while the president appeals.
The Trumpist argument is dangerous precisely because it is partly right. Like many Trumpist critiques of the status quo, there are grounds for complaint, but their proposed cure is worse than the disease.
Forum shopping and nationwide injunctions are pernicious. They disrupt the operation of the federal government when plaintiffs can find friendly judges and block policies nationwide before an appeal can be heard.
But neither phenomenon is new, and Trumpists were among the worst offenders before they regained power.
Let’s look again at Stephen Miller. During the Biden administration, he formed a legal organization called America First Legal and sought injunction after injunction against administration policies.
Republicans were relentless forum shoppers as well. A single judge in Amarillo, Texas, Matthew Kacsmaryk, became famous for hearing high-profile cases against Democratic policies. Democrats were so frustrated that Chuck Schumer introduced a bill in 2024 that would end forum shopping and mandate random judicial assignments in cases that had state or national-level consequences.
It is ultimately better for the rule of law if plaintiffs can’t pick their judge, and it is also better for the legitimacy of the courts if their jurisdiction is limited by the parties before them and the geography of their districts.
If litigants want a nationwide injunction, the law should require a more rigorous process — for example, Congress could require cases to be heard by a randomly selected three-judge panel rather than a single district judge.
As it is now, any president’s opponents could file, say, 10 cases in 10 different judicial districts, lose nine times but still get a nationwide injunction if they persuade only one judge — a judge they’ve handpicked for that purpose.
But Trumpists are hoping to replace a flawed system with a broken system. They’ve taken a kernel of a good argument and wrapped it around a profoundly warped view of the American constitution.
The presidency is not designed to be the genuine democratic representation of the American people. In fact, the Electoral College is anti-democratic. It enhances the influence of small states far beyond their populations. As we saw in 2000 and 2016, there are times when the popular vote loser wins the White House.
If a president can win with a minority of the popular vote, how could the presidency possibly be seen as the one true office that represents the national will?
Congress, by contrast, is far more representative. Trump won 49.9 percent of the popular vote, but he is now the president of 100 percent of the American people. In the House and Senate, by contrast, even political minorities have representation, and the composition of the House is far more reflective of the actual popular will than the occupant of the White House.
Not only is Congress far more representative of the American people, the Constitution gives it far more power than the president, a constitutional fact that will bear repeating time and again in Trump’s second term. Congress has the sole authority to appropriate funds. It can fire the president or any member of the judiciary through its impeachment power. It can override presidential vetoes.
Trumpists are ultimately hoping to replace the separation of powers with executive primacy, but if they hope to swallow the other branches, they’re right to identify the judiciary as their primary foe. Republicans in Congress exist to serve Trump. But the judiciary knows its role.
“The primary protection of individual liberty in our constitutional system comes from the separation of powers in the Constitution,” Brett Kavanaugh, argued in a speech at Notre Dame before his appointment to the Supreme Court, “the separation of the power to legislate from the power to enforce from the power to adjudicate.”
These principles were cemented in the 1803 case Marbury v. Madison, and Kavanaugh’s interpretation is directly relevant to the present moment: “This is a critical aspect of Marbury that is often overlooked. The court not only has the power of judicial review of legislation (as we will see); it also has the power to reject the president’s interpretation of the Constitution.”
This view of the law is utterly opposed to Stephen Miller’s. This view of the law preserves the Supreme Court as the arbiter of the Constitution, both for the legislative and the executive branch.
Trump and his team are furious at the federal judiciary, but they’re to blame for their own legal struggles. Trump has issued a host of poorly drafted executive orders. Trump’s administration has snatched people off the streets without adequate due process. The so-called Department of Government Efficiency is unilaterally wrecking agencies that were established by Congress, usurping Congress’s primacy in America’s constitutional structure.
It is not the judiciary’s fault that Trump has chosen to attack the constitutional order, and it is hardly the case that he’s losing only to liberal judges.
In his first term, he had the worst record at the Supreme Court of any modern presidency before his. An analysis by Adam Bonica of court decisions so far in Trump’s second term shows that judges from across the political spectrum are ruling against Trump. By Bonica’s count, even conservative judges are ruling against him 50 percent of the time.
I do not have confidence that the courts will make all the right calls (I’m still angry at the Supreme Court’s ruling last year on presidential immunity), but I am confident that neither the Supreme Court not the lower courts will yield to presidential threats.
After Trump called for the impeachment of a federal judge who’d just ruled against him, Chief Justice John Roberts issued his own statement. “For more than two centuries,” he said, “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.”
The language was polite, but the meaning was unmistakable. Let judges do their jobs. No one can guarantee that Trump won’t defy the courts, but so far he hasn’t intimidated the courts, and so long as they stand firm, and so long as the courts remained unbowed, the Constitution has a chance to survive.
Some other things I did.
It’s already been a busy week, another aspect of life under Trump. On Sunday, I wrote about Trump’s economic attack on Canada. Why does he keep talking about annexing one of our closest allies? As I told a Canadian journalist, Canada is Trump’s Ukraine:
I did not mean that Trump is preparing to invade or use force against Canada. But he does intend to dominate Canada, to render it little more than a vassal of the United States, making it only nominally independent. In fact, you can’t fully understand Trump’s approach to Ukraine without understanding his view of Canada (or Mexico or Greenland or Panama) — and vice versa.
By word and deed, Trump treats Vladimir Putin and Xi Jinping as his only real peers. Our allies, by contrast, are our subordinates. It’s as if Putin, Xi and Trump were feudal lords and each were entitled to his own feudal domain.
On Monday, I called on Pete Hegseth, Trump’s secretary of defense, to resign. The Atlantic’s Jeffrey Goldberg was inadvertently invited to join a chat group with senior members of the administration on the civilian messaging app Signal. Hegseth shared the details of an upcoming attack on the Houthis, an Iran-backed militia in Yemen:
Federal law makes it a crime when a person — through gross negligence — removes information “relating to the national defense” from “its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted or destroyed.”
It’s way too soon to say whether Hegseth’s incompetence is also criminal, but I raise the possibility to demonstrate the sheer magnitude of the reported mistake. A security breach that significant requires a thorough investigation.
Nothing destroys a leader’s credibility with soldiers more thoroughly than hypocrisy or double standards. When leaders break the rules that they impose on soldiers, they break the bond of trust between soldiers and commanders. The best commanders I knew did not ask a soldier to comply with a rule that didn’t also apply to them. The best commanders led by example.
What example has Hegseth set? That he’s careless, and when you’re careless in the military, people can die. If he had any honor at all, he would resign.
Finally, on Tuesday, I recorded a brief podcast discussing the worst aspects of the Trump administration’s group-chat debacle:
It should be obvious to people that sharing plans for an attack hours before the attack could create problems, but let’s get a little bit more specific: The Houthis could move some of their weapons away from targeted locations. They could move senior officials away from targeted locations so that the strikes are less effective. They could choose to, for example, launch missiles themselves to attack before they are attacked, an action that could be incredibly costly in lives and in ships. They could move their senior leaders.
The administration is saying now that there was nothing classified in the chat and they weren’t really war plans — in many ways, casting aspersions on Goldberg’s integrity. In fact, when Pete Hegseth, the secretary of defense, was confronted with these facts, he attacked Goldberg and did not acknowledge his own wrongdoing. But there is not an officer alive whose career would survive a security breach like this.
The post About That Rule of Law… appeared first on New York Times.
