Modern autocratization is often marked by executive leaders weaponizing the legal system of the democratic country they were elected to lead. It allows for an easy way of legitimizing controversial political moves, giving them a legal veneer in order to conceal their illiberal nature. Outright power-grabs have fallen out of fashion in the modern world, and would-be autocrats need to find new ways to centralize power within a system of long-held democratic norms. And arguably, it has been going well for certain leaders around the world, especially Donald Trump.
As soon as he was sworn in for his second term, Trump began enacting a series of executive orders that both aimed to fulfill some of the promises he’d made on the campaign trail to throngs of supporters, and to strike down those he deemed his political enemies. Instrumental in achieving this is the American legal system, something that he claimed would be ending under his administration. One of the executive orders published on his first day in office, stated that the Biden administration had “engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process…[and] targeted individuals who voiced opposition to the prior administration’s policies…”. And yet, through the use of the judicial system, Donald Trump has sought to enact policies incongruent with the longstanding democratic norms of the United States. In March, he sought to deport undocumented migrants under a law from 1798, citing that the intended purpose of the law (which was meant to curtail foreign espionage during a time when the U.S. believed it would be entering a war with France) extended to forcibly removing hundreds of supposed gang members from U.S. soil. The move sparked several lawsuits and rulings from federal courts that it was an unlawful move, including one from a Trump-appointed judge. The result was extreme backlash from President Trump, who took to social media to attack the judges issuing rulings critical of his agenda.
This was not a one-time instance. Three months later, amid a string of scandals related to Trump’s ties to Jeffrey Epstein, the administration announced that it would be investigating former president Barack Obama for “treasonous conspiracy”, suggesting that the administration had provided false information relating to Russian interference in the 2016 presidential election. Obama has long been a target of Trump’s ire, but until recently had not seen a direct legal attack justified by the use of the American judicial system. Trump-appointee Pamela Bondi initiated a “strike force” to lead the investigation, which called into question the role of the U.S. justice department in attempting to prosecute the president’s political enemies. This has extended to the indictments of Letitia James, the attorney general for the state of New York, former director of the FBI, James Comey, and former Trump national security advisor, John Bolton, all of whom have vocally spoken out against the president in some capacity. The politicization of the justice system by the president, the installation of loyalists in top positions of power, and the increasing bending of the knee from the American public are extremely concerning factors when it comes to maintaining the centuries of democratic norms that have long been upheld by the executive leadership. The fact that Trump has faced zero repercussions, legal or otherwise, for his actions demonstrates that the role of the executive is being reshaped before our eyes.
So what does this mean for the future of American democracy? If President Trump continues to overstep the constitutional boundaries placed on the executive branch in favor of weaponizing systems intended to be independent of executive influence, then the country becomes at increasing risk of seeing checks and balances eroded and power being centralized in the hands of a singular executive. Presidents and leaders seeking power in a country with a strong democratic tradition seek to undermine the systems in place to retain legislative and judicial independence, as well as placing political loyalists in leadership positions at agencies intended to be apolitical. What President Trump is engaged in is a form of stealth authoritarianism, where he is using the legal and judicial systems headed by people he appointed to gain a favorable outcome for himself. This also works to help him fulfill the more inflammatory and publicized comments he made while campaigning on a platform comprised of right-wing populism and extreme conservatism. Attempts to prosecute political opponents on charges of varying durability also extend to members of the media who criticize his approaches to implementing policy. Leveling pressure on networks to restrain late-night hosts who refuse to be cowed is another form of ensuring that establishments fall into line. Increasing the price of criticism, turning the judicial system into a weapon, and seeking to legitimate his illiberal policies through the lens of legality are all ways that Donald Trump has sought to insulate himself from the consequences of turning the country into a place where only those he deems loyal and worthy are able to prosper and receive benefits formerly entitled to every citizen, whether they supported the current president or not.
The current political system is certainly further emboldening Trump, as is the case with the numerous executive orders and the politicization of the Department of Justice.
Despite minor horizontal checks (as is the case with the Federal Court judges striking down the Trump administration’s questionable use of the Alien and Sedition Act of 1798 in a contemporary context), I fear that the U.S.’s governmental system is not doing enough to limit the Trump administration’s abuses, and I further question whether contemporary judicial checks can significantly limit the aforementioned abuses.
Effective judicial accountability is considered instrumental in democracy: it entails the courts and judges limiting abuse of power and upholding the rule of law, and striking down any actions that are unconstitutional. The judiciary is generally considered bulwarks, that is, the watchdogs of democracy: courts are seen to protect democracy with their decisions and uphold the principle of seperation of powers. However, this is what the courts ought to do and are not reflective of reality.
Robert Dahl posited the “Regime-Maintenance Theory,” in which the courts are seen as making decisions in line with the dominant political majority, making them a part of the regime rather than safeguarding liberties.
In conjunction comes the idea of abusive judicial review: constitutional interpretation by judges that intentionally attacks the minimum core of electoral democracy. In a contemporary context, the Supreme Court is particularly guilty of this: their decisions are increasingly promoting anti-democratic initiatives of a right wing populist movement.
Such is exemplified through the Supreme Court’s decision in Trump v. US in 2024, where the Court found Trump’s efforts to overturn the 2020 Presidential Election (through coercion of state officials to alter votes, use of the DOJ to conduct baseless election crime investigations and send letters to targeted states that indicated that they found significant concern of election issues) to be within his offical acts and cannot be criminally prosecuted for such actions, giving the President absolute and presumtive immunity.
With this ruling, the Court grants the President an absorbent amount of power, while effectively deterring any check on it. As Justice Jackson suggests in her dissent, this renders the role of the President the role of a monarch. Such broad power is dangerous because though entrusted to act in the name of public good, the President does not always operate in this manner.
In essence, it is true that Trump is leveraging the political system to his advantage, and no check effective check is made on this from the Supreme Court, in part due to its conservative majority and in part because the courts have been found to be a part of the regime.