President Donald Trump and his loyalists in the Senate advanced a decades-long Republican project to dominate the judicial branch, fueling years of liberal outrage over partisan rulings and the broken nature of judicial review.
Now, wrote Austin Sarat for Salon, Trump is weaponizing all those same anti-court arguments to craft a "counter-Constitution" that disregards the power of judges altogether.
"In the first Trump administration, as the president stacked the Supreme Court and the federal judiciary with MAGA-allied judges, progressives eagerly denounced those judges and what they labelled 'judicial supremacy,'" wrote Sarat. "They argued that the authority to interpret the Constitution was not lodged solely in the judicial branch. It was, they contended, also the work of the other branches, and the American people themselves, to say what the law is.
"Now, they are appalled when members of the Trump Administration take up those arguments and offer constitutional arguments of their own."
As Republican-appointed judges gained control of the judiciary and began rolling back rights, it was common for left-leaning professors to criticize how little check there was on judicial decisions, with Yale Law professors Robert Post and Reva Siegel writing in 2004, it would be a “fundamental mistake to define constitutional law in ways that force nonjudicial actors regularly to choose between obeying constitutional law and fulfilling what they regard as their constitutional obligations.”
Similar arguments are being used by Trump appointees now — only in this case, rather than to advocate for anti-partisan reforms to the judiciary like the JUDGES Act, they're used to grant themselves permission to openly defy court orders, even from judges who are themselves Republican appointees.
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For example, Secretary of State Marco Rubio has proclaimed, "There is a division in our government between the federal branch and the judicial branch. No judge, and the judicial branch, cannot tell me or the president how to conduct foreign policy." Attorney General Pam Bondi similarly attacked U.S. District Judge James Boasberg for reining in mass deportation flights to the Salvadoran CECOT megaprison without due process, saying judges are “trying to control our entire foreign policy.”
Two months ago, Boasberg found probable cause to hold Trump administration officials in contempt for defying orders.
"All of this is a reminder that in a constitutional republic, officials, citizens, and commentators need to take a long view and think not just of what will advance their immediate interest. Prudence requires considering what things would look like if, and when, their opponents come to power," Sarat concluded. "Patience and foresight are underappreciated, but indispensable virtues of constitutional government."
