Any effort to classify Trump’s tactics should grapple with the history.
Any effort to classify Trump’s tactics should grapple with the history.
D onald Trump is historically unusual for an American president, and often unprecedented, in his behavior. That’s often — though not always — a bad thing. But if one is going to write on the subject of how Trump violates American norms and resembles foreign autocrats, it would be nice to show at least some understanding that American history did not begin in 2025.
One need not absolve Trump in order to notice when things he does are somewhat similar to his predecessors. Some of those things were bad the first time, and some are legitimately worse in ways that can be distinguished and explained. But the job of a columnist is to explain those distinctions, not simply hope that the reader is unaware of them. (For a good example of situating Trump’s immigration-law fights with the courts in their proper context, consider this Andy McCarthy column.) As I explained back in 2017, it’s not “whataboutism” to talk about what the other party has done in the past — especially when the other side’s whole argument is about what is and isn’t “unprecedented” — so long as you have some consistent theory of what is good and/or legal and what is bad and/or illegal.
The Atlantic seems to have an especially strong aversion to context, even when it involves extremely recent history. Consider two columns by Andrew O’Donohue. O’Donohue’s biography describes him as “a political scientist at Harvard University and a non-resident scholar at the Carnegie Endowment for International Peace.” He wrote in February on “How to Prevent Trump From Defying the Courts.” He returned this morning to that topic: “Trump’s Legal Strategy Has a Name. And it has been deployed by would-be autocrats around the world.” Both columns describe Trump’s collision with the courts and try to situate them in the context of the behavior of chief executives in different constitutional and legal traditions in Turkey, Mexico, Israel, El Salvador, and Brazil. (Israel, for example, has no written constitution to justify judicial rulings striking down enactments of its parliament, and no role for the Israeli people’s representatives in appointing the judiciary.) Yet somehow, neither column mentions any of America’s own history on the topic, much of it very recent and at issue in the last several presidential and Senate election cycles.
Here is O’Donohue’s argument:
The pattern I have seen as I’ve studied democratic backsliding globally is what I call “court-baiting.” To undermine public support for the judiciary, political leaders adopt policies that are popular but very likely illegal. Many courts then rule against the executive, and the executive uses their unpopular decision to condemn the judiciary writ large. Court-baiting is a potent strategy because it puts judges in a lose-lose position: Either strike down a popular policy and face public backlash, or allow the policy and erode legal limits on executive power. Such tactics are tailor-made to undermine judges’ legitimacy, because elected leaders can claim to represent the “will of the people”—and thus democracy—when the courts block popular policies. Even when losing, these would-be authoritarians win. . . . By emphasizing the popularity of unlawful policies, Trump administration officials have followed the court-baiting playbook.
A president trying to do illegal things and then appealing over the heads of the courts, or threatening their legitimacy? Why, that sounds like something totally new in American politics, unless your memory happens to extend to the past decade and a half.
Presidents and Justices
Confrontations between the American executive and the courts have been going on for some time, of course. Thomas Jefferson and his secretary of state, James Madison, refused to even send a lawyer to argue Marbury v. Madison, and Chief Justice John Marshall carefully crafted his opinion to assert the judicial power to invalidate congressional statutes in such a way that there was no judicial order the executive branch could resist. Andrew Jackson — Trump’s presidential hero, at least until he got interested in William McKinley — never did defy a Supreme Court order to the federal executive branch, and it’s unclear if he ever actually said “John Marshall has made his decision, now let him enforce it.” But he did describe the Court’s ruling in Worcester v. Georgia (requiring the state of Georgia to release from prison two missionaries who claimed that they were exempt from Georgia law while on sovereign Cherokee territory) as “still born,” and he did nothing to compel Georgia to comply with the decision, which the state ignored. Abraham Lincoln probably didn’t defy an order by Chief Justice Roger Taney in Ex parte Merryman (1861), but in his First Inaugural Address, he strongly implied that he might not abide by parts of another decision (Dred Scott v. Sandford) to which the executive branch was not a party, and which Lincoln as a Senate candidate had described as the work of a conspiracy between the chief justice, the president, and the top Democrat in the Senate:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. [Emphasis added]
(Two lawyerly quibbles are worth recalling here in favor of the lawyerly position of the very lawyerly Lincoln. One is that the portions of Dred Scott dealing with federal power to ban slavery in the territories was not just wrong, it was dicta — i.e., not necessary to decide the case, and therefore not a binding decision — after the Court determined that it lacked subject matter jurisdiction over any lawsuit by a black man. The other is that 19th-century lawyers tended to regard precedent as something that arose from a series of decisions affirming a principle, rather than our modern view that a single Supreme Court decision is binding precedent the day it is decided.)
The Progressive Menace
Ultimately, the Court won without firing a shot. Neither Jefferson, nor Jackson, nor Lincoln ended up going to public war with the judiciary in the court of public opinion. Where that changed was with the progressive movement within the Democratic Party. The greatest public attack on the judiciary was conducted by our most authoritarian president, Franklin D. Roosevelt. His Court-packing plan was just one prong of a larger offensive to pressure and delegitimize the Court and its conservative “Four Horsemen” for striking down popular New Deal programs. He denounced the Court in “fireside chat” radio addresses, and his Court-packing proposal was so menacing that the House Judiciary Committee called it “the most terrible threat to constitutional government that has arisen in the entire history of the country” and the Senate Judiciary Committee’s report vowed that it “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And those were his fellow Democrats. But the campaign worked in the sense that the Court bent its jurisprudence toward letting FDR do what he wanted.
The threat returned under Barack Obama. In 2010, in the State of the Union address, Obama blasted the justices to their faces for siding with “special interests” in the Citizens United decision, and Justice Samuel Alito was caught on camera appearing to say “not true” of Obama’s misrepresentation of the Court’s decision — a framing so rabble-rousing that even Linda Greenhouse of the New York Times thought Alito had a point. In 2012, Obama dialed up the pressure in advance of the Court’s decision on the constitutionality of Obamacare, warning against “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” He claimed that it was “a good example” of illegitimate “judicial activism” if “an unelected group of people would somehow overturn a duly constituted and passed law.” White House Press Secretary Jay Carney argued that “it would be unprecedented in the modern era of the Supreme Court, since the New Deal era, for the Supreme Court to overturn legislation” on a “matter of national economic importance.”
These were not legal arguments about the proper role or powers of the Court; they were efforts to cow the justices on the theory that Obamacare represented the popular will. And they worked, as Chief Justice John Roberts apparently changed his vote, relying on an unpersuasive reading of the taxing power at odds with how the case had been argued, to uphold Obamacare in 2012 and defend the federal exchanges in a decision of such warped reasoning it has since been treated as non-precedential.
As O’Donohue properly notes, “constitutionalism means that society must accept an unpopular policy that respects constitutional limits over a popular policy that violates them. . . . There will almost always be some policy that is popular but unconstitutional.” But that has not been the Democrats’ approach during or after the Obama years. It wasn’t in August 2019, when Senator Sheldon Whitehouse wrote in an amicus brief on gun control, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.” It wasn’t in March 2020, when Democratic Senate leader Chuck Schumer took to the Supreme Court steps to bellow, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have unleashed the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” This was followed by a wave of protests targeting the justices at their homes, to which the Biden administration and House Democrats responded by conspicuously resisting providing law enforcement protection to the justices, let alone enforcing federal laws against such protests.
Things did not get better from there. Democratic 2020 presidential hopefuls, starting with Pete Buttigieg and including Kamala Harris, began endorsing Court-packing. Joe Biden, who criticized the idea during the primaries, refused to say during the fall campaign whether he was still against it, instead proposing a commission to keep the threat hanging over the justices’ heads. The Atlantic, which in 2018 had published a “Don’t Pack the Court” op-ed from the man Biden later picked as chairman of the commission, catered to the shifting winds in 2020 by publishing a column arguing that “The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing.”
In 2021, Biden tried to get the Centers for Disease Control to extend a national eviction moratorium that even his own White House Counsel’s Office told him was illegal. When the case initially reached the Supreme Court in late June, four justices concluded the same thing; Justice Brett Kavanaugh wrote that he also agreed that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and that only Congress could authorize such a step, but he declined to get the courts involved in enjoining the moratorium because it was supposed to expire soon anyway.
Despite there being a majority of the Court explicitly concluding that this was unlawful, Biden announced that he would extend the moratorium further, conceding that it was “not likely to pass constitutional muster” but “by the time it gets litigated, it will probably give some additional time” to help “people who are, in fact, behind in the rent and don’t have the money.” Thus, Biden would count on (in his own words) “the ability to, if we have to appeal, to keep this going for a month — at least. I hope longer.” So goaded, the Court struck down the whole thing.
Biden attacked the Court more directly when it struck down his unconstitutional student-loan plan to spend half a trillion dollars without congressional authorization, and after finding new avenues to spend well over $100 billion on loan forgiveness, he repeatedly bragged on the campaign trail: “The Supreme Court blocked it. But that didn’t stop me.” Meanwhile, when trying to shore up progressive support to stay atop the ticket, Biden in July 2024 rolled out a new version of a Court-packing plan, which Harris then pledged to support.
Trump on the Brink
Trump, in his first term, was dutifully obedient to court orders, although he often issued intemperate blasts at individual judges, especially those who ruled against him in his personal rather than presidential capacity. This time has been different. There are clearly people in the administration, such as Stephen Miller, who are openly champing at the bit for their own showdown with the courts in order to clear a wider space for executive actions that are judicially unreviewable. (It’s not clear whether JD Vance, who has publicly defended the necessity of deportations without any legal process, is actually pushing this effort or just flacking for it.)
Thus far, the Trump administration has played with fire, daring the district courts to act and, in some cases, clearly misleading them, but it has yet to squarely trigger a direct confrontation with any appellate court. In some cases, the administration has had at least an arguable case for defending against overreaching district judges its own rights to appeal.
Of course, we shouldn’t have to wait for that to happen in order to be alarmed at the direction that this is all taking. The fact that threats to the judiciary have typically come from Democrats in our era and throughout the past century makes it worse, not better, that Trump is pushing the limits of how far the executive branch can go in delegitimizing the courts and refusing to acknowledge their authority.
Still, it would be nice if people criticizing Trump now had some sense of that recent history. It would be better still if their criticisms made liberals and progressives think twice about playing this game again.