A Constitution in crisis

Our courts were co-opted before, but are now being reduced to observers by an executive branch hellbent on destroying the rule of law

A few weeks ago, I wrote an analysis of how relying on the courts to defend Democratic norms and individual rights was futile in the face of the Trump-Musk administration’s assault on seemingly bedrock foundations of our Republic. The situation, however, has grown worse in the time since then, and even critical observers tend to overlook the most dangerous parts of the pattern.

A decision that transformed the Court

My earlier article focused on the structural co-optation of the judiciary long before Trump returned to Washington, and the eventual implications of the Bush v. Gore decision that most observers continue to disregard. Voices fearing a constitutional crisis unfolding in 2025 often forget that, by deciding the 2000 presidential election, the Supreme Court not only subverted democracy in that moment, but also indirectly contrived its own future composition—and jurisprudence.

A series of ensuing outrageous decisions—ranging, for instance, from Citizens United v. FEC (which in 2010 sold our democracy to the highest bidder) to Dobbs v. Jackson Women's Health Organization (which in 2022 ended reproductive freedom and turned back the clock on women’s rights by decades)—all trace their roots to Bush v. Gore. The judiciary effectively co-opted itself, introducing an unconstitutional circularity in the process for judicial nominations that indirectly contrived the Court’s current composition.

Beyond that subversion of judicial independence by the judiciary itself, however, an even more clear & present danger to the Constitution has now emerged: an executive branch that has proven itself unwilling to respect judicial review.

The cases demonstrating that pattern are disturbing. The implications for our constitutional design—and the future of whatever might remain of our Republic—are even worse.

We intervened at the time

My concerns about the structural co-optation of the courts led me to work from 2005-08 at a then-startup non-profit in Washington called the American Constitution Society (ACS). Founded to defend judicial independence and counter the profound influence of the Federalist Society over judicial nominations, ACS worked tirelessly to cultivate ideological balance in our nation’s courts.

While ACS has expanded dramatically since then, its core mission was subverted by elected Democrats who had better things to do than show up for work. Recommendations from ACS were generally ignored, allowing the nominations process to remain skewed in favor of corporate lawyers (when Democrats held the White House) and lawyers dedicated to executive power (when Republicans held the White House), rather than others who had spent careers defending and advancing rights.

The inevitable result was what we see today: a weaponized Supreme Court dominated by right-wing ideologues poised to enforce their vision of society on the rest of us. Decisions like Dobbs represent the culmination of the right wing strategy that began in the 1970s when the Federalist Society was founded.

Today, however, the Constitution faces a new set of threats, the likes of which our Republic has not encountered in centuries, since the days of Andrew Jackson.

An executive branch run amok

Plenty of voices have observed the aggressiveness of the Trump-Musk administration in promoting its predatory policy vision. Far fewer recognize the danger that lurks beyond discrete policy decisions, and how the administration’s response to court rulings threatens the constitutional design.

On several occasions over the past several weeks, the administration has openly violated court orders. The pattern began within a month of Trump returning to office, as the administration unapologetically defied a judicial ruling issued in January that—had it been respected—would have blocked the administration’s efforts to suspend federal grants opposed by Trump & Musk.

A month later, the administration violated a judicial order aiming to block the mass deportation of 250 Venezuelans to El Salvador. Not only did the administration ignore the judicial ruling, but the President then called on Congress to impeach the judge who issued it, as well as others who have issues rulings at odds with his goals.

Trump’s call for impeaching judges prompted a rare (and toothless) rebuke from Chief Justice John Roberts. Ironically, Roberts was the first of the right wing Justices whose illegitimate appointments were enabled by the circularity of the Bush v. Gore ruling.

Could Congress be any more complicit?

Rather than defend judicial independence, Congress is outrageously bending over backwards to enable its further erosion. This week, the House of Representatives passed a bill that—if it passes the Senate and is signed into law— would dramatically curtail the courts’ authority and restrict judicial decisions to the parties before the court, rather than similarly situated parties elsewhere. It would hamstring the courts by rendering them powerless to issue injunctions beyond the specific district in which they each sit.

Should Congress proceed with Trump & Musk’s invitations to impeach judges, the erosion of judicial independence will reach another level of madness. Congressional complicity in that pattern is a dramatic revelation of how unqualified for office most elected officials remain, and the profound constitutional ignorance that enables the continuing collapse of our Republic and its transformation into an autocracy.

History

When presidents openly defy court orders, they don’t just violate the law. They also challenge the structure of the constitutional design.

Two generations ago, President Richard Nixon famously defied a court order during the Watergate investigation that required him to provide tape recordings of White House conversations. While he ultimately did comply with the order, it took a ruling by the Supreme Court to force his hand.

Beyond Nixon and the Court, the crucial reason why he had to comply with the Court’s ruling was congressional commitment to the rule of law—precisely what we no longer have today.

The same thing happened during an earlier era in history, when President Andrew Jackson thumbed his nose at the Supreme Court’s 1832 decision in Worcester v. Georgia.

That case presented the question of whether the State of Georgia had the authority to enforce laws within Cherokee Territory. Because Native American tribes are sovereign nations (despite having been subjected to a terrifyingly recent genocide), the Supreme Court held that Georgia was not allowed to remove them from their land.

Reacting to the decision under Chief Justice John Marshall, President Jackson’s infamous (and potentially apocryphal) response succinctly reflected the nature of our crisis today: “John Marshall has made his decision; now let him enforce it!”

Siding with the State of Georgia, Jackson ignored the Supreme Court ruling and joined Georgia in continuing its efforts to remove the Cherokee people, culminating in the Trail of Tears, one of the worst human rights abuses in our nation’s ugly and hateful history.

Importantly, Congress regarded Jackson’s support for Georgia and rejection of the Supreme Court’s decision as a matter of executive discretion. Because Jackson was popular, defying the courts held no consequence for him.

As much as any other moment in U.S. history, this saga exposed the Supreme Court’s powerlessness over any president without also having congressional support.

The Marbury v. Madison case, decided in the early days of our Republic, reflected a stroke of genius. It represented the court creatively constructing for itself a role in checking and balancing other branches that inevitably wield more power. The power it established for the Court, however, is more fragile than most Americans seem to think.

The executive wields the power of the sword, and Congress the power of the purse. The courts have only the power of the pen, which relies in turn on respect from the other branches.

When a president openly defies the courts and ignores rulings attempting to constrain him, there is more or less no other force poised to intervene. Congress could conceivably defund the administration or impeach the president—but with Republicans controlling both houses of Congress, neither possibility is likely.

Even if Democrats held control of one or another branch, they’ve repeatedly demonstrated their complicity and inability to show even a modicum of spine, proving that they can not be relied upon, either.

Nothing can stop them

Observers who think that courts have tools at their disposal to compel executive compliance are unfortunately confused. Only Congress can compel the executive branch to respect judicial decisions—but, at the moment, it is also complicit.

We are stepping into an era of U.S. history that no one alive has encountered. Students of history might recall it. Nothing encapsulates the history of executive power run amok better than the Trail of Tears, when indigenous Americans were displaced en masse, torn from both their land and cultures, and died by the tens of thousands.

I’ve written about how the ongoing Israeli genocide in Gaza reflects the indigenous genocide in North America, and the recency of that genocide, even in places that claim now to be progressive. I’ve also explored how popular resistance to unrestrained militarism has struggled to meet the same level of influence as it did during the Vietnam War, ultimately implicating the strength of (whatever passes for) democracy in America.

I wish that confluence were simply a matter of historical analogy, rather than a disturbing example of history rhyming. If America is to either end the genocide in Gaza or restore any modicum of constitutional order, it will require a mobilization supported by organized labor.

But with Trump’s ironic support among blue collar workers, that remains a more ambitious vision than it may appear.

How will America meet this moment? My fear contends with my hope, but reason sadly supports the former.

Paid subscribers can access a further section describing a series of future posts on which I’ve been working, exploring subject matter and themes quite different from those I’ve covered before. I’m excited to share a new arena of inquiry, and hope to eventually compile these forthcoming posts into my first book.