//  2/28/18  //  Commentary

By Nicole Ndumele at Protect Democracy (@protctdemocracy)

President Trump’s assaults on our courts have escalated in recent weeks, and high-ranking state officials in Pennsylvania are following suit.  These assaults are the latest in a growing onslaught undermining the legitimacy of the courts in our country.  They are harbingers of a dangerous path toward authoritarianism.

President Trump once again lambasted the Ninth Circuit this week after the Supreme Court rejected the Justice Department’s petition to bypass the appeals court and overturn the lower court’s injunction preventing the Trump Administration from halting the Deferred Action for Childhood Arrivals (DACA) program.  President Trump wasted no time expressing his displeasure with this development.  He derided the Ninth Circuit, saying “[n]othing’s as bad as the 9th Circuit,” and lamented the Supreme Court’s ruling that the Administration “has to go through the normal channels,” of permitting the Ninth Circuit to review the lower court injunction before petitioning to the Supreme Court to have it overturned.  President Trump has previously disparaged the Ninth Circuit for what he referred to as its “ridiculous rulings” in the travel ban and sanctuary cities cases. 

Since taking office, President Trump has persistently and publicly attacked courts that have struck down his policies, subverting the system of checks and balances that form the bedrock of our democracy.  President Trump attacks judges who rule against him, calling them “so called,” “unelected,” and “unfair” judges.  He derides adverse judicial opinions as “ridiculous” and “disgraceful.”  And that’s just the beginning. He claims that the courts are putting the country in peril by overturning certain of his immigration policies and that they will be to blame in the event of a future terrorist attack.  He and his top advisors have questioned whether the courts have the power to review the constitutionality of his policies.  He pardoned Sheriff Joe Arpaio after Arpaio repeatedly and unrepentantly refused to obey court orders.  And his Chief of Staff formerly led an agency found to have violated court orders striking down portions of the President’s travel ban.   

Protect Democracy has been tracking President Trump’s unprecedented attacks on the courts and drafted a white paper explaining how these attacks follow the script that autocrats have used to cripple the courts’ ability to restrain unlawful government actions in authoritarian regimes. In short, it’s how autocrats accrue and maintain power. 

We’ve seen this play out most recently in Turkey, Poland, and Hungary where strongmen rose to power and undercut the courts in their respective countries with public denunciations not dissimilar from what we are seeing from President Trump.  You can go to Protect Democracy’s international chart to learn more about how the assaults on the courts in each of these regimes escalated to the outright refusal to abide by adverse court orders and to dismaying anti-democratic campaigns to purge the courts and even to arrest and detain judges issuing orders unfavorable to the ruling party. 

Alarmingly, we’re seeing state leaders are now emboldened by the example of our President and are engaging in similar attacks on state courts as well.  In January, the Pennsylvania Supreme Court ruled that Pennsylvania’s congressional districts were unconstitutional for being exceptionally gerrymandered.  When the court ordered the legislature to produce redistricting data, Pennsylvania State Senate Pro Tempore Joseph Scarnati declared that he would not comply with the court’s order.  Worse yet, State Representative Cris Dush sent a memo to his colleagues in the House of Representatives urging them to co-sponsor legislation calling for the impeachment of the five state court justices who ruled that the state congressional map violated the state constitution.

Efforts to purge or delegitimize courts following rulings against government officials or their political party is a hallmark authoritarian move.  Our President set the tone for these kinds of attacks.  Our state government officials are following suit.

Since the founding of the republic, the courts have played a vital role in ensuring that the fundamental rights and liberties etched in our Constitution are made real for all Americans.  By reviewing congressional and executive actions, the courts help preserve the delicate balance of power between the branches of our government and ensure that government officials do not abuse the power given to them by the American people.

Courts are a critical bulwark of our democracy.  When government officials attempt to circumvent the courts’ authority to review their actions, to impeach the judges who rule against them, or to defy court orders, Americans of all stripes should be concerned.  We must band together to preserve our courts and protect our democracy.


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