President Trump’s intensifying conflict with the federal courts is unusually aggressive compared with similar disputes in other countries, according to scholars. Unlike leaders who subverted or restructured the courts, Mr. Trump is acting as if judges were already too weak to constrain his power.
“Honest to god, I’ve never seen anything like it,” said Steven Levitsky, a Harvard political scientist and coauthor of “How Democracies Die” and “Competitive Authoritarianism.”
“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,” he said. “These first two months have been much more aggressively authoritarian than almost any other comparable case I know of democratic backsliding.”
There are many examples of autocratic leaders constraining the power of the judiciary by packing courts with compliant judges, or by changing the laws that give them authority, he said. But it is extremely rare for leaders to simply claim the power to disregard or override court orders directly, especially so immediately after taking office.
In Turkey, President Recep Tayyip Erdogan has purged thousands of judges from the judiciary as part of a broader effort to consolidate power in his own hands. But that required decades of effort and multiple constitutional changes, Mr. Levitsky said. It only became fully successful after a failed 2016 coup provided a political justification for the purge.
In Hungary, Prime Minister Victor Orban packed the constitutional courts with friendly judges and forced hundreds of others into retirement, but did so over a period of years, using constitutional amendments and administrative changes.
Over the weekend, the Trump administration ignored a federal judge’s order not to deport a group of Venezuelan men, then later tried to retroactively justify its actions with arguments so distant from settled law and ordinary practice that legal experts have said they border on frivolous.
Defenders of the Trump administration’s policies have claimed that judges have too much power over the executive branch.
On Tuesday, Mr. Trump further raised the stakes by publicly calling for the impeachment of the judge who had issued the order, prompting a rare rebuke from Chief Justice John G. Roberts.
“For more than two centuries,” the chief justice 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.”
Mr. Levitsky said he was struggling to find a precedent for what the Trump administration is doing.
“The zeal with which these guys are engaging in increasingly open, authoritarian behavior is unlike almost anything I’ve seen. Erdogan, Chavez, Orban — they hid it,” Mr. Levitsky said.
Questioning authority
The conflict between the Trump administration and Judge James E. Boasberg of the Federal District Court in Washington is nominally about deportation. But legal experts say it has become a showdown over whether judges should be able to constrain the executive branch at all.
“Judges aren’t allowed to control the executive’s legitimate power,” Vice President JD Vance declared last month. “I don’t care what the judges think — I don’t care what the left thinks,” Mr. Trump’s border czar, Tom Homan, said this week during an appearance on “Fox & Friends.”
On Tuesday, Mr. Trump wrote on social media that Judge Boasberg was a “Radical Lunatic” and should be “IMPEACHED,” because the judge “was not elected President — He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING!”
Karoline Leavitt, the White House press secretary, said on social media that “A single judge” cannot mandate the movements of a planeload of people “who were physically expelled from U.S. soil.”
(In fact, U.S. courts can and do order the return of aliens who have been wrongfully deported.)
The Trump administration’s tactics are highly unusual, said Andrew O’Donohue, a nonresident scholar at the Carnegie Endowment for International Peace, who studies clashes between courts and elected leaders around the world. Typically, battles over court power have tended to be extensions of political divisions.
In Israel, for example, the right-wing government led by Benjamin Netanyahu has sought to curb the power of the courts, which were historically associated with the country’s left wing. In Turkey, the courts were associated with the secular state, and clashed with President Recep Tayyip Erdogan’s religious, populist agenda.
But Mr. Trump and the federal courts are not ideological foes in the same way. Federal judges hold a range of views, but the judiciary has grown more conservative in recent decades. And the Supreme Court, which has a conservative majority, has delivered the political right a number of significant legal victories in recent years, including granting presidents sweeping immunity from criminal prosecution.
Norms of restraint, flipped on their head
Courts do not have their own armies or significant police forces. Yet leaders typically obey judges’ orders, because of the political costs of flouting them.
Usually, voters won’t reward their elected leaders for violating norms, disrupting a stable constitutional order, or taking actions that are intrinsically unlawful, said Aziz Huq, a law professor at the University of Chicago and co-author of the book “How to Save a Constitutional Democracy.”
But that calculus may not apply to Mr. Trump, who has based his political appeal on gleefully flouting sacrosanct norms. Refusing to accept courts’ authority may actually appeal to the president’s base, Huq said, if they take it as evidence of strength rather than lawlessness.
Past presidents have also been more constrained by elites within the political establishment.
“Richard Nixon had to care not just about public opinion, but Walter Cronkite, and Republican and Democratic Party leaders,” Mr. Levitsky said. “That constraint, which was difficult to measure, but I think very real in the 20th century, has lifted.”
Today, traditional gatekeepers are much weaker — particularly when leaders like Mr. Trump profit politically by picking fights with the establishment.
Protecting courts against hostile leaders
There are proven ways that courts can successfully defend their authority against leaders’ noncompliance or attacks. The most effective source of protection is when the courts can draw on support from other government officials outside the judiciary, “who can put muscle behind a court decision,” said Mr. O’Donohue.
When President Jair Bolsonaro of Brazil tried to defy court decisions over lockdowns and public health measures during the pandemic, local mayors and governors followed the court rulings anyway.
But that tactic may be more difficult to use when the order concerns a federal agency directly. Local leaders cannot force the Department of Homeland Security to comply with a court order to halt a deportation flight, or restore USAID’s funding.
Political pressure to protect courts’ power can also be effective, even in cases where a leader’s own constituents are pushing in the opposite direction.
In Israel, for example, Prime Minister Benjamin Netanyahu’s own supporters were strongly in favor of proposed laws that would have sharply limited the courts’ power to constrain political leaders. But the broader public mobilized fierce opposition to the reforms.
In 2023, thousands of Israelis took to the streets almost every Saturday in mass protests against the judicial overhaul. Influential sectors of society, including military reservists, business leaders, trade unionists and senior politicians also publicly opposed the law. Their actions shut down businesses, traffic and even Ben-Gurion International Airport. Eventually, Netanyahu was forced to suspend most of the planned changes.
Mass protest movements are difficult to form and sustain, however. Thus far there is little sign that a similar movement is forming in the United States.
Political pressure could also come from within Trump’s political coalition.
“If even a dozen Republicans in Congress had the capacity to stand up to Trump, this would be a very different ballgame,” Mr. Levitsky said. “Trump and Musk and Stephen Miller could not do this alone. They’re doing it with the full cooperation of the majority party in Congress.”
“We’re in a bad place,” he said.
