\n<\/p>\n
President Trump\u2019s intensifying conflict with the federal courts is unusually aggressive compared with similar disputes in other countries, according to scholars. Unlike <\/span>leaders who subverted or restructured the courts, Mr. Trump is acting as if judges were already too weak to constrain his power.<\/p>\n \u201cHonest to god, I\u2019ve never seen anything like it,\u201d Steven Levitsky, a Harvard political scientist and coauthor of \u201cHow Democracies Die\u201d and \u201cCompetitive Authoritarianism.\u201d<\/p>\n \u201cWe look at these comparative cases in the 21st century, like Hungary and Poland and Turkey. And in a lot of respects, this is worse,\u201d he said. \u201cThese first two months have been much more aggressively authoritarian than almost any other comparable case I know of democratic backsliding.\u201d<\/p>\n 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.<\/p>\n<\/div>\n<\/div>\n 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.<\/p>\n 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.<\/p>\n Over the weekend, the Trump administration ignored a federal judge\u2019s order<\/a> 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.<\/p>\n Defenders of the Trump administration\u2019s policies have claimed that judges have too much power over the executive branch.<\/p>\n<\/div>\n<\/div>\n On Tuesday, Mr. Trump further raised the stakes by publicly calling for the impeachment<\/a> of the judge who had issued the order, prompting a rare rebuke<\/a> from Chief Justice John G. Roberts.<\/p>\n<\/div>\n<\/div>\n \u201cFor more than two centuries,\u201d the chief justice said, \u201cit 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.\u201d<\/p>\n Mr. Levitskysaid he was struggling to find a precedent for what the Trump administration is doing.<\/p>\n \u201cThe zeal with which these guys are engaging in increasingly open, authoritarian behavior is unlike almost anything I\u2019ve seen. Erdogan, Chavez, Orban \u2014 they hid it,\u201d Mr. Levitsky said. <\/p>\n 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.<\/p>\n \u201cJudges aren\u2019t allowed to control the executive\u2019s legitimate power,\u201d Vice President JD Vance declared last month. \u201cI don\u2019t care what the judges think \u2014 I don\u2019t care what the left thinks,\u201d Mr. Trump\u2019s border czar, Tom Homan, said this week during an appearance on \u201cFox & Friends.\u201d<\/p>\n On Tuesday, Mr. Trump wrote<\/a> on social media that Judge Boasberg was a \u201cRadical Lunatic\u201d and should be \u201cIMPEACHED,\u201d because the judge \u201cwas not elected President \u2014 He didn\u2019t WIN the popular VOTE (by a lot!), he didn\u2019t WIN ALL SEVEN SWING STATES, he didn\u2019t WIN 2,750 to 525 Counties, HE DIDN\u2019T WIN ANYTHING!\u201d<\/p>\n<\/div>\n<\/div>\n Karoline Leavitt, the White House press secretary, said on social media that \u201cA single judge\u201d cannot mandate the movements of a planeload of people \u201cwho were physically expelled from U.S. soil.\u201d<\/p>\n (In fact, U.S. courts can and do<\/a> order the return of aliens who have been wrongfully deported.)<\/p>\n The Trump administration\u2019s tactics are highly unusual, said Andrew O\u2019Donohue, 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.<\/p>\n<\/div>\n<\/div>\n 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\u2019s left wing. In Turkey, the courts were associated with the secular state, and clashed with President Recep Tayyip Erdogan\u2019s religious, populist agenda.<\/p>\n 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.<\/p>\n<\/div>\n<\/div>\n Courts do not have their own armies or significant police forces. Yet leaders typically obey judges\u2019 orders, because of the political costs of flouting them.<\/p>\n Usually, voters won\u2019t 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 \u201cHow to Save a Constitutional Democracy.\u201d<\/p>\n But that calculus may not apply to Mr. Trump, who has based his political appeal on gleefully flouting sacrosanct norms. Refusing to accept courts\u2019 authority may actually appeal to the president\u2019s base, Huq said, if they take it as evidence of strength rather than lawlessness.<\/p>\n Past presidents have also been more constrained by elites within the political establishment.<\/p>\n \u201cRichard Nixon had to care not just about public opinion, but Walter Cronkite, and Republican and Democratic Party leaders,\u201d Mr. Levitsky said. \u201cThat constraint, which was difficult to measure, but I think very real in the 20th century, has lifted.\u201d<\/p>\n Today, traditional gatekeepers are much weaker \u2014 particularly when leaders like Mr. Trump profit politically by picking fights with the establishment.<\/p>\n<\/div>\n<\/div>\n There are proven ways that courts can successfully defend their authority against leaders\u2019 noncompliance or attacks. The most effective source of protection is when the courts can draw on support from other government officials outside the judiciary, \u201cwho can put muscle behind a court decision,\u201d<\/em> said Mr. O\u2019Donohue.<\/p>\n 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.<\/p>\n 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\u2019s funding.<\/p>\n Political pressure to protect courts\u2019 power can also be effective, even in cases where a leader\u2019s own constituents are pushing in the opposite direction.<\/p>\n<\/div>\n<\/div>\n In Israel, for example, Prime Minister Benjamin Netanyahu\u2019s own supporters were strongly in favor of proposed laws that would have sharply limited the courts\u2019 power to constrain political leaders. But the broader public mobilized fierce opposition to the reforms.<\/p>\nQuestioning authority<\/h2>\n
Norms of restraint, flipped on their head<\/h2>\n
Protecting courts against hostile leaders<\/h2>\n<\/p>\n<\/div>\n