Cross the Courts Off the List

We have enough information to conclude that the law won't save us.

(Photo: Getty)

The second Trump Administration has been a bold exercise in not caring about laws. It has been clear from day one—and grows ever more clear with each passing week, to the point that there are now no more intensifiers of the word “clear” that can be applied—that the White House plans to do whatever it wants, laws be damned. The administration has fired government workers illegally, it has torn up union contracts illegally, it has impounded Congressionally appropriated money illegally, it has gone to war with another country illegally, it has allowed unprecedented levels of open corruption illegally, it has defied court orders illegally, it has called out the military into an American city illegally, it has sent forth an army of masked federal agents to snatch Americans off the streets and deport them to foreign nations illegally. Extend this list at your leisure until you are sufficiently convinced that what is happening is happening.

Trump and Friends’ utter, unconcealed lawlessness exposes some of the delusions of our existing institutions. Years from now, I suspect, much of the media will still be reflexively granting respectability to the White House out of pure habit, and much of the legal community will be spending its time inventing novel new permutations of the law designed to turn gangsterism into legitimate Constitutional actions. By the time the historians get through with it, all of this learned helplessness will be seen as embarrassing institutional failures, to be apologized for by future generations. Fortunately, those of us unencumbered by careerism enough to see reality for what it is can accept the truth and move on to more useful questions.

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The most useful question about this Administration has long been: Who or what is going to stop them? Since Inauguration Day, I have been holding in my mind the open question: Will the courts stop them? Anyone interested in this question has to have a bit of humility about their own prior beliefs. On one hand, if you are on the left, it is easy to say, “Laws are written by capital, the courts are bought by the right wing, it’s all a foregone conclusion.” Which is not true! On the other hand, an ironic twist is that the people most deeply enmeshed in the law—lawyers, legal analysts, judges, etcetera—can be the most myopic and useless on this question. They view the law as the ultimate arbiter of the boundaries of possibility. They are often unable to pull back their analytical lens enough to understand that, in the face of a greater power, the law is unenforceable, and in the face of pure nihilism, the moral foundations for the law dissolve into cynicism, rendering the law pretty useless. Somewhere between these two extremes lies the ability to look at the reality of what is happening and ask, “Is the law going to do its job?”

The activities of the Supreme Court that wrapped up this week give us enough evidence to answer the question: No. It’s time to cross the courts off the list of Potential Saviors of the American Democratic Experiment. The court’s ruling in Trump v. CASA, limiting the ability of lower courts to issue national injunctions that stop bad laws from going into effect while they are being litigated, contains enough information for us to draw the reasonable conclusion that it is time to look elsewhere for hope.

This is not so much because of the legal reasoning of the case (which some of those legal analysts insist is not so bad!). Nor is it even because of the tangible negative impact of the ruling, which in practical terms is going to allow the administration to declare that it is going to do wildly unconstitutional things like “end birthright citizenship” and then just do them while the slow and imprecise gears of litigation grind on for years and years. It is because of the fact that the Supreme Court knows the political situation, understands the risks of handing Trump power, and, with that knowledge, continues to decline to stop him. The court’s insistence that it is a source of philosophical legal reasoning rather than dirty politics has always, of course, been bullshit, but that makes this case even scarier—because it means that the Republican justices on the court stared Trump’s rising dictatorial nature in the face, considered the possibility of restraining him, and decided not to do it.

They are checking out of the game. If Trump has not crossed a red line sufficient for the Supreme Court to rein him in already, then the red line is so far away that we will all be in prison before he reaches it.

Allies.

This does not mean that there will not be favorable rulings in the future, or that the avalanche of lawsuits that have been filed against Trump’s various outrages so far are not worth pursuing. Specific actions have been stopped, and more will be stopped. The durability of those victories will depend to a large extent on how much of a priority the particular issue is for the administration. The passion projects of the biggest zealots, like Stephen Miller and Russ Vought, will be pushed forward over the objections of the courts. That is already abundantly clear, with immigration, with the gutting of various agencies and government programs, and so on. While some courts in some cases may mitigate some bad actions, the aggregate power of all of the courts is not going to be sufficient to block the big things that the Trump administration wants to do. The lawyers fighting the good fight should, by all means, continue. But the rest of us should accept that this fight is not going to be won at the courthouse. It will have to be won elsewhere.

So where? What remains on the “Who will stop them?” list. In addition to the courts, you can cross off “The Republican Party,” which has been fully purged of all opposition. You can cross off “Congress,” which has marginalized itself to such an extent that its power is now mainly to go on cable news shows and complain. And you can cross off “The business community,” which—despite having, in theory, enough capital to squash Trump’s ambitions, has proven itself to be so greedy, short-sighted, and cowardly that it wouldn’t even stand up for its own long-term interests when it could have, and certainly will not now, when the danger of government retaliation is higher than ever.

The most significant remaining opportunity for course correction is the midterm elections. It is not so much that the elections (which if history is any guide should cause Republicans to lose control of Congress) are a magic wand that will fix our broken democracy, any more than, you know, Obama’s election fixed America. It is instead the much more modest but vital hope that Republicans can still lose power in elections. The midterm elections will be a test not so much of whether the Democratic Party will finally become the heroic resistance heroes we need—they won’t—but rather a test of whether Trump and Co. will have it together to suppress the vote to the degree that elections, also, need to be crossed off the list of fruitful avenues of opposition.

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We are going to see ICE agents at polling places, and politically motivated government investigations of political opponents, and possibly a number of non-Republican politicians and activists arrested and put in jail. That will be the setting of the midterm elections. Trump is a man who does not believe in even the abstract concept of losing an election. He is surrounded by yes men top to bottom in the federal government, and he has armies of armed agents at his disposal. The midterm elections are going to be a very, very important gut check for our democracy, and the extent to which it still functions. We, all of us, all of civil society, must protect the integrity of those elections at all costs. If the Trump administration is able to suppress the vote so severely that the midterms cannot be seen as fair, we are in an even worse place than we are now.

Having given up on the possibility of a Supreme Court line in the sand, I am now looking at those elections as the next most important data point about how much hope is left to return to our traditional standard of “normal.” Apart from the elections, the other meaningful source of opposition is: Us. People. I have hoped that organized labor could be the rallying point for popular opposition to dictatorship. So far, that hasn’t happened. Institutionally, the long decline in union power has rendered organized labor extremely ineffective, disorganized in the face of a war on the existence of public sector unions, and unable to act in a powerful, concerted fashion on a nationwide scale. It is still possible, however, for unions to be one part of a grassroots coalition that forms to battle this out. The national protest movement we have seen arise—most recently the “No Kings” protests—shows me that the bulk of public opinion is on the right side here. The fascists are a minority. Stopping their advance, though, will require funneling the public opposition into organizations, into all facets of direct actions. What we have now is the sentiment, but not the organization. It can be built. The situation is not, in any sense, hopeless. There is much more to be said about the mechanics of all this, but for now, join an organization that is in the fight, and fight.

It’s just that the path is narrower. We don’t gain anything by telling ourselves fairy tales about what is coming. If the courts won’t do their ostensible job of saving us then it is time to think of the law not as the arena of our salvation but as a minefield to pick our way around carefully en route to a more promising destination.

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• Related reading: They Are a Minority; The Business Community Is Extraordinarily Stupid; What to Get in the Next Uprising; To Unfuck Politics, Create More Union Members.

• Last year, I published a book called “The Hammer,” about how the labor movement has the potential to be the center of power for a new and more hopeful American politics. Everything that I wrote about in that book remains true, even as the depressing turn of events demonstrates how bad things can get when labor is not powerful. If you’re interested in the landscape of American economic and political power, you might enjoy the book. You can order it from an independent bookstore at this link.

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