Ryan D. Doerfler is a professor of law at Harvard Law School. Samuel Moyn is a professor of law and history at Yale University.
Don’t count on the courts to save democracy
Giving courts the last word is part of what got us into this mess. It won’t get us out.
March 20, 2025 The Washington Post
By Ryan D. Doerfler and Samuel Moyn
The new mood is understandable: Democrats have lost the two political branches in elections, and a great many of President Donald Trump’s actions are indeed menacingly lawless. But it is one thing to use courts strategically, hoping to limit the damage of Trump’s malfeasance; it is another to erect and idealize them as the last bastion and true essence of the law itself. The reality is that empowering courts — including the Supreme Court — and giving them the last word is part of what got us into this mess.
It won’t get us out.
“It is not hyperbole to say that the future of American constitutional democracy now rests on a single question,” law professor Erwin Chemerinsky recently wrote in the New York Times. “Will President Trump and his administration defy court orders?” Actually, that is astonishing hyperbole, not to mention the wrong question. Whether democracy survives and thrives mainly depends, as it always has, on whether our politicians and the people take responsibility for what the law means and who answers to it — imposing their own limits on the president.
Interpreting the law is also the province and duty of elected officials, but you wouldn’t know it from the rhetoric of Sen. Susan Collins (R-Maine), who voted to confirm Project 2025 architect Russell Vought as head of the Office of Management and Budget, offering blithe assurances that it was up to the courts, not her, to stop him. The legislature has more, and more rightful, power than the courts do to declare limits to Trump’s power. Maintaining that the courts alone draw the line between democracy and dictatorship gives lawmakers permission to duck that responsibility. Any liberal idealizing the courts as if they have to save us is as wrong as Collins is. And what if the courts cannot — or choose not to — do the job?
It isn’t just that the courts are inevitably reactive and slow. As a practical matter, the courts have limited powers to constrain a lawless executive, no matter how much initiative they take or how fast. The president’s freeze on foreign aid, for example, egregiously violated Congress’s spending power. A federal district court judge agreed, ordering that aid be unfrozen. The administration dragged its heels in complying with the order, prompting a rebuke from the judge. After an emergency appeal to the Supreme Court (in which the justices sided 5-4 with the district court), the judge reaffirmed that the government must make good on its contracts for aid work already performed. For future work, however, the judge reasoned it would be inappropriate to intervene at this stage, given the president’s significant discretion in deciding which firms to contract with. AIDS patients in Kenya, meanwhile, are rationing antiviral medications, and malnourished children in Congo are left without access to food, with no clear timeline for the restoration of aid. In short, what the courts provided wasn’t a Pyrrhic victory, but it wasn’t a full-blown one either.
One sees a similar pattern with higher education. Trump’s decision to slash grants for medical research has sent schools into a panic. Various states filed suit, arguing that funding was guaranteed by federal statute, and a district court ruled in their favor. While this was playing out, though, the government stopped future contracts and grants with different universities including, most notably, Johns Hopkins, where it canceled $800 million in funding. Columbia University, meanwhile, was deprived of $400 million in federal funds based on the school’s alleged failure to combat antisemitism. All of these decisions are legally contestable on substantive and procedural grounds. Amid the uncertainty, however, both state and private universities have announced hiring freezes and layoffs and canceled graduate admissions, while individual researchers have begun to explore options abroad — all damage that will not be undone even if lawsuits ultimately prevail.
Apart from their limited remedies, courts are often lawless themselves. Being willing to stick their necks out to check the president is the same power that judges have used to make it possible for Trump to act in unprecedented ways in the first place.
Take the administration’s ongoing efforts to replace or eliminate huge swaths of the federal workforce, often in flagrant violation of federal statute — which piggybacked on recent Supreme Court jurisprudence, extending the assault on government.
From his first days in office, the president has fired several high-ranking officers, including inspectors general overseeing different departments and members of the National Labor Relations Board and Federal Trade Commission. All those officers were removable only for “malfeasance” or “neglect of duty” under the governing statute. Ignoring that restriction, however, Trump fired them anyway. The administration blew past similar employment protections in laying off tens of thousands of “probationary” staffers at agencies ranging from the Consumer Financial Protection Bureau to the Agriculture Department to the Small Business Administration. Those staff reductions were the first move in the president’s plan to get rid of a million or more federal workers. Standing in the way of such destruction of state capacity, presumably, are civil service protections, which prohibit the arbitrary removal of most career government employees. Yet the administration has continued shedding federal employees including, most recently, about half of those at the Education Department.
Dozens of lawsuits have been filed to halt these massive layoffs. But in an interview with the New Yorker’s Isaac Chotiner, law professor Cristina Rodríguez hints that the Supreme Court will probably uphold at least some of the dismissals. Despite the fact that Congress’s laws protect nearly all of these workers from being removed by the president at will, Chief Justice John G. Roberts Jr. has declared such protections unconstitutional in numerous settings. Rodríguez forecasts, entirely plausibly, that “existing precedents” do not yet suggest the court will declare for-cause firings unconstitutional as a matter of course.
The precedents Rodríguez mentions all hinge upon a discredited constitutional theory: the “unitary executive,” which says the president gets to control most or all officials in the executive branch. That theory is as dangerous as it is unfounded. So if the Supreme Court upholds some but not all of these firings, it will not be helpful, as Rodriguez suggests, nor will it serve to clarify the law. Given that the justices might be too embarrassed to strike down all for-cause protections at once, it makes strategic sense for liberals to seek judicial relief in these cases. But it is possible to do so while continuing to insist that all the firings were lawless, no matter what Roberts or the other justices have to say.
The reality is that the second Trump administration is only pushing things further in the same direction the Supreme Court has been heading toward for years. It has overturned almost 500 laws in its history, and the frequency has increased of late. It guts others by reinterpreting them. >From campaign finance to voting rights, congressional and popular respect for judicial precedent has played directly into our constitutional crisis. The president, whose three appointments to the court created its conservative supermajority, is relying on the justices to sidestep laws Congress has rightfully passed.
Idealizing courts as the last and most important line of defense of Congress’s laws is both foolish and irresponsible. Though liberals should take whatever litigation wins they can, real resistance must take place in Congress, at government workplaces and in the streets.