The U.S. Judicial Crisis Is Uniquely Dangerous

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Analysis The U.S. Judicial Crisis Is Uniquely Dangerous But other democracies provide a roadmap for courts to prevail over attacks from the executive branch. March 26, 2025, 11:04 AM Comment icon View Comments ( 1 ) By Andrew O’Donohue , a political scientist at Harvard University and a non-resident scholar at the Carnegie Endowment for International Peace. U.S. President Donald Trump shakes hands with Supreme Court Chief Justice John Roberts during Trump’s inauguration in Washington, D.C. U.S. President Donald Trump shakes hands with Supreme Court Chief Justice John Roberts during Trump’s inauguration in Washington, D.C., on Jan. 20. Chip Somodevilla/AFP via Getty Images My FP: Follow topics and authors to get straight to what you like. Exclusively for FP subscribers. Subscribe Now | Log In Politics United States Just two months in, U.S. President Donald Trump’s administration is aggressively challenging judicial constraints on its power, risking a showdown—and constitutional crisis—in which the executive branch seeks to make court orders optional. This month, the U.S. executive branch blatantly defied a federal judge’s order to temporarily halt the deportation of migrants to El Salvador. The president himself called for the impeachment of the judge who issued the order, along with other judges . In one of the 139 legal cases filed against the Trump administration as of Wednesday, a federal judge described the president’s executive order to overturn birthright citizenship as “ blatantly unconstitutional .” Just two months in, U.S. President Donald Trump’s administration is aggressively challenging judicial constraints on its power, risking a showdown—and constitutional crisis—in which the executive branch seeks to make court orders optional. Trump’s Second Term Ongoing reports and analysis Trending Articles 5 Key Questions About Signalgate The biggest outstanding questions we have about the Signal group chat scandal. Powered By Advertisement 5 Key Questions About Signalgate X This month, the U.S. executive branch blatantly defied a federal judge’s order to temporarily halt the deportation of migrants to El Salvador. The president himself called for the impeachment of the judge who issued the order, along with other judges . In one of the 139 legal cases filed against the Trump administration as of Wednesday, a federal judge described the president’s executive order to overturn birthright citizenship as “ blatantly unconstitutional .” The Trump administration’s attacks on the judiciary lack recent precedent in the United States, yet they follow a clear and troubling pattern. In democracies around the world, elected leaders are challenging legal constraints on their power: Just look at Brazil, India, Israel, Hungary, Mexico, Poland, and Turkey, to name a few. Since the end of the Cold War, elected leaders have sought to undermine judicial limits on executive power. Three factors explain why courts around the world are under fire: the weakening of the political establishment, the strengthening of judicial power, and a sea change in how democratic backsliding occurs. A closer look at how these trends operate in the United States sheds light on why Trump’s attack against the courts has been unusually swift and severe . Though the experiences of countries such as Brazil and Israel offer several paths for courts to prevail, the sources of support that protect judiciaries from attack are troublingly absent in the United States today. A man dressed in colonial gear raises a fist and holds a U.S. and Trump flag. At left is another soldier in historic garb salutiong and holding a flag with a cross and the words Trump45 Truth: In God We Trust. Merry Christmas 2020. Behind them a guard stands in front of the Supreme Court. Trump supporters protest in front of the Supreme Court in Washington, D.C., on Dec. 12, 2020, after the high court’s decision not to overturn the election of Joe Biden. Andrew Lichtenstein/Corbis via Getty Images The first driver of executive attacks on the judiciary is the global weakening of the political establishment—the elites within political parties, state institutions, media, and business who can constrain an aspiring autocrat. While in the 1980s and 1990s politicians relied on establishment political parties, media outlets, and donors to reach large audiences, today’s elected leaders can build mass followings using digital technologies, bypassing democracy’s gatekeepers . A weakened political establishment leaves the judiciary vulnerable, because establishment leaders often worked to defeat attacks on the courts. In Israel, for example, the influential finance minister from 2015 to 2020 blocked right-wing plans to curb the judiciary. But today, the political establishment is weaker, and individual executives are more powerful. Israel’s governing coalition now faces little internal dissent as it moves to restructure the judiciary and fire independent state officials . Second, as elected leaders have become stronger, so has the judiciary. Before World War II, only a handful of constitutions empowered judges to strike down laws that they deemed unconstitutional. But by 2011, more than 80 percent of constitutions gave courts the power of constitutional review—often because the drafters sought to protect their political interests from future governments. High courts around the world are now responsible for adjudicating issues of major political importance , from reproductive rights and same-sex marriage to bans on political parties. Because the courts now have greater power and responsibility for protecting democracy, political leaders have stronger incentives to try to capture them. Today, elected officials seeking to concentrate power will most likely encounter a judiciary empowered to defend the constitution. Read More An illustration shows a golden Cybertruck blasting through a U.S. seal of an eagle holding arrows and laurel. An illustration shows a golden Cybertruck blasting through a U.S. seal of an eagle holding arrows and laurel. Is America a Kleptocracy? Here’s how life could change for the rich, poor, and everyone in between. Essay | Jodi Vittori Trump stands in an opera box with his hands out wide. Trump stands in an opera box with his hands out wide. Is Trump Executing a Self-Coup? Modern autocrats don’t openly declare their intention to kill democracy but erode it stealthily over time. Analysis | Moises Naim Trump-autocracy-v-democracy-foreign-policy-mark-harris Trump-autocracy-v-democracy-foreign-policy-mark-harris The Key to Understanding Trump’s Chaotic Foreign Policy Around the world, the White House seems to be aiding autocracies at the expense of democracy. Essay | Nicholas Bequelin Finally, there has been a radical change in how democracies die . During the Cold War, military coups accounted for almost half of cases of democratic breakdown; courts are rarely power brokers during a coup. But modern democratic backsliding often happens gradually through legal means. Since the 2000s, as political scientist Milan Svolik notes, four out of five democratic breakdowns have occurred through executive takeovers , which “typically entail the gradual subversion of democracy.” In these contexts, courts are key actors that can constrain—or enable—the legal maneuvers that dismantle democracy. These factors explain why the attack on the U.S. judiciary has been unusually aggressive: In the United States, the political establishment is seriously weakened and the judiciary distinctly empowered. Most relevant to the current attack is the collapse of the establishment as a constraint on the president. During his first term, Trump relied on figures such as then-Senate Majority Leader Mitch McConnell, who had an interest in protecting the courts from intimidation. But today, Trump’s key allies, such as advisors Elon Musk and Stephen Miller, are amplifying the president’s calls to impeach judges and circumvent judicial decisions . Within the White House, the president faces few constraints on this behavior. Another reason that the Trump administration’s attack on the judiciary is exceptionally aggressive is that U.S. courts are particularly powerful. Trump and senior officials have zeroed in on the fact a single federal judge can issue a “nationwide injunction” to block an executive order, which has enabled the judiciary to halt at least a dozen of Trump’s policies so far. Furthermore, as political scientist Arend Lijphart finds , the United States is one of a few democracies where the high court exercises very strong powers of judicial review. This unusual influence makes the U.S. judiciary a prime target. A sign shows three men including Benjamin Netanyahu at center with hear no, speak no, and see no evil hand postures over their faces. The sign is surrounded by a sea of Israeli flags. Protesters hold up a sign as thousands of Israelis attend a rally against the Israeli government’s judicial overhaul plan in Jerusalem on March 27, 2023. Amir Levy/Getty Images The weakness of the U.S. establishment and strength of the U.S. judiciary have led to a forceful challenge to the courts. These variables predict an executive attack on the courts, but they do not determine which branch will prevail. The experiences of other democracies show that there are a few ways for the judiciary to thwart an executive power grab. As Aharon Barak, the former president of Israel’s Supreme Court, recently told me, “The court cannot be the only protector of the constitution. … It must have the support of others.” Barak’s observation raises a crucial question: When the judiciary is challenged, who can protect it, and how? Three main paths empower the judiciary to counter a challenge from the executive branch, each with support from an external source. What is worrying for the U.S. judiciary is that none of these sources of support is currently apparent. To uphold legal limits on the executive, the most effective path is for other elected officials—including legislators, governors, and mayors—to throw their weight behind the courts. Consider the case of Brazil. After a series of crises weakened Brazil’s established political parties, former President Jair Bolsonaro rose to power on a right-wing, populist platform and clashed repeatedly with Brazil’s Supreme Federal Court. Bolsonaro threatened to impeach its justices , defy a judge’s rulings , and even shut down the court . Yet Brazil’s judiciary held its ground against Bolsonaro’s attempted power grab by mustering support from elected officials. These officials blocked executive efforts to curb the courts and implemented judicial decisions: The leader of Brazil’s Senate, for example, flatly rejected Bolsonaro’s request to impeach a Supreme Court justice. Enabling this resistance was the fact that Bolsonaro lacked single-party control over the legislature. Moreover, Brazilian governors and mayors put local government power behind judicial rulings. When Brazil’s high court decided that Bolsonaro could not override local public-health measures during the COVID-19 pandemic, for example, local leaders made the ruling a political reality by implementing their own policies. A man in a short-sleeved shirt is seen behind with index fingers pointed and arms extended. In front of him is a cheering crowd holding signs behind a fence. Then-Brazilian President Jair Bolsonaro greets supporters in front of the Planalto Palace, after a protest against the National Congress and the Supreme Court in Brasília on March 15, 2020. Sergio Lima/AFP via Getty Images A painting of a man with a gouge across his faces rests on an ornate carpet. A vandalized painting depicting a political figure lies in a room at the National Congress in Brasília on Jan. 9, 2023, a day after Bolsonaro supporters invaded the Congress, presidential palace, and Supreme Court. Carl de Souza/AFP via Getty Images Left: Then-Brazilian President Jair Bolsonaro greets supporters in front of the Planalto Palace, after a protest against the National Congress and the Supreme Court in Brasília on March 15, 2020. Sergio Lima/AFP via Getty Images Right: A vandalized painting depicting a political figure lies in a room at the National Congress in Brasília on Jan. 9, 2023, a day after Bolsonaro supporters invaded the Congress, presidential palace, and Supreme Court. Carl de Souza/AFP via Getty Images When elected officials fail to check the executive branch, courts can resist an attack by receiving support from a second external source: societal mobilization . Israel under Prime Minister Benjamin Netanyahu offers a striking example. In 2023, after Netanyahu’s justice minister announced sweeping proposals to reduce judicial constraints on the executive, numerous sectors of Israeli society—including civil society groups, tech leaders, and military reservists— mobilized to sustain large-scale, long-term protests against the government’s proposals. This mobilization proved consequential not because it changed the prime minister’s mind but because it empowered Israel’s Supreme Court to rule against the legislation. In January 2024, even amid an ongoing multifront war, the Supreme Court struck down a contentious law that sought to reduce the high court’s power, which had galvanized months of protests. As Israeli law professor Barak Medina told me, “The protest movement was critical for providing the court the needed popular legitimacy.” The Supreme Court’s ruling against the government in turn provided oxygen to the protests. As Medina observed, if the judiciary had allowed the legislation to stand, “it would have been a blow to the protest movement.” In Israel, mass protests and judicial rulings were mutually reinforcing. Support for the courts can come from a third key source: non-elected officials, such as government lawyers and military and intelligence professionals. Israel’s ongoing battle over the judiciary is again illustrative. Israel’s attorney general, who is an independent official rather than a political appointee, publicly opposed the government’s effort to reduce judicial power. Legal advisors, including the attorney general, also helped protect the judiciary by blocking potentially illegal policies before the Supreme Court needed to rule against them. In Israel, non-elected officials thus provided a crucial shield for the judiciary and helped limit direct conflict between the government and the courts. It is no coincidence that as Netanyahu’s government pushes a bill through parliament to change the process of appointing judges , his cabinet has moved to fire two independent state officials: the attorney general and the head of Israel’s domestic intelligence agency . Troublingly, in the United States, decisive support for the judiciary has yet to materialize from any of these sources. Some Republican lawmakers , such as Senate Majority Leader John Thune and Sen. Lisa Murkowski, have affirmed that the White House should comply with court rulings, but most Republicans are unwilling to rebuke the president’s rhetoric. Democrats, who control neither chamber of Congress, face an uphill battle. They have the votes to block an attempt to remove federal judges, which requires a two-thirds majority in the Senate, but their authority to compel the White House to comply with court orders is much more limited. Protesters stand in front of the U.S. Capitol holding two signs. They read: “May God Help Us if the Courts Don’t” and “Wanted for Treason” with a mugshot of Donald Trump. People take part in a protest against the Trump administration’s mass firing of government workers and civil servants in front of the Capitol building in Washington, D.C., on Feb. 17. Dominic Gwinn/Middle East Images/AFP via Getty Images Protests have emerged in response to Trump’s second-term policies, but many Americans who might oppose the executive’s attacks on the judiciary are afraid , exhausted , or in shock . Some non-elected officials have resisted Trump administration actions, such as the prosecutors who refused to drop the corruption charges against New York’s mayor. These independent-minded prosecutors, however, have now resigned. Judges in the United States are thus in a uniquely dangerous position: The protectors of the U.S. Constitution do not yet have a clear protector for themselves. Though the U.S. legal system has historically served as a model for other countries, today other democracies can provide important insights for the United States. Barak, the former Israeli Supreme Court president, offered one such lesson: “When the constitution and democracy are threatened, judges should not go into the bunker and say, ‘OK, let the missiles go ahead. A better time will come. We can reemerge to continue our job.’ No. You cannot reemerge, because many of those rockets will hit you. You have to stand firm and do whatever you can within the law to protect the constitution.” This post is part of FP’s ongoing coverage of the Trump administration . Follow along here . My FP: Follow topics and authors to get straight to what you like. Exclusively for FP subscribers. Subscribe Now | Log In Politics United States Andrew O’Donohue is a political scientist at Harvard University and a non-resident scholar at the Carnegie Endowment for International Peace. 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