Recent reports by The New York Times share a growing consensus within the judiciary of an impending crisis, with a lack of clarity creating foreseeable conflict and confusion. The article noted a survey that went to over 400 federal judges; 65 of them responded. These judges’ appointments were represented by an approximately equal number of Republican and Democratic presidents. Their responses show a growing and deep concern for the integrity of the judiciary. In today’s environment, the Supreme Court’s rulings, issued through unsigned orders, can be described as “mystical” and “demoralizing.” This dynamic is making evident the shift from past norms in the relationships within the judiciary, as well as external changes between the branches of government and their constitutional checks and balances.

Erosion in the Courts
The use of unsigned Supreme Court orders demonstrates the quiet nature through which democratic erosion unfolds. Ozan Varol (2016) coined the term “stealth authoritarianism,” in which legal mechanisms are used to consolidate and maintain power, moving society away from democratic systems of accountability. In less than a year since the presidential inauguration, the country has seen massive changes in how the executive branch manages national finances, the military, and hot-button social issues like immigration. The Supreme Court orders have contributed to the foundations of existing executive overreach.

Individually, arguments are made that the systemic changes happening are a natural manifestation of the popular mandate and part of the daily workings of society. However, to conscientious observers, democracy is under attack. Once aggregated, a pattern of systemic weakening, the erosion of accountability within democratic institutions, and disenfranchisement of the citizenry becomes more evident. More directly for the judiciary, these orders contribute to the lack of clarity that creates an opportunity for internal conflict to be made public, as seen in the example of two Supreme Court judges publicly admonishing a lower court judge over his interpretation and application of a previous order. The incident drew criticism from stakeholders who would otherwise not engage in public displays of disagreement.

How did we get here?
For the average American, all of this happened overnight. Were that it had, perhaps we would not be here. Trump’s three appointments have had the net effect of shifting the balance of the Supreme Court and making it more conservative. His decisions were guided by organizations that have been working on the incremental co-option and ideological capture of generations through the Federalist Society and the Heritage Foundation. Trump has openly credited their contributions in this process.

Contrast this with a previous attempt at judicial capture. In 1937, Franklin D. Roosevelt tried to add more judges to move the New Deal forward. That effort was rebuffed, demonstrating a strong democratic foundation and balance of power at the time. Fortunately, those same institutions ultimately approved the New Deal, but not in the forced way Roosevelt intended. Today, Trump’s success has been in leveraging the groundwork laid by others, allowing him to consolidate power even further in his second term. In other words, Roosevelt’s abrupt attempt was too blatant a power grab, allowing for coordinated opposition. Trump’s approach has been more sophisticated, one that is honed by others who have executed with surgical precision.

Legal or No? Maybe…
The gradual co-option of the judiciary shows that democratic erosion in the United States is unfolding through legal means; it is difficult to perceive as a whole when its various parts are being dismantled behind the scenes and with little or no disclosure. We see many of the consequences, but even then, it takes a while to feel them. What people do see is that the courts continue to operate, cases continue to be heard, and orders continue to be issued, yet the underlying balance of power is shifting. This is at the heart of democratic erosion. It is not a democratic explosion. It is tied to time, degrees of change, and utilizes the same democratic institutions that grant power as a resource to undermine democracy itself.

Intent, whose to say?
The New York Times article shared a defense of the Court’s opacity. It is argued that minimal explanations prevent the justices from becoming locked into an opinion that may not fully represent their intentions. In this view, silence is strategic and could be seen as prudent. For example, the courts operate on a longer cycle than presidential terms. And as an institution, the Court shapes the boundaries of law, but does not have an army. It lacks the direct power of enforcement, and it survives on the legitimacy of the constitution. In its noncommitment, the Court may be changing less fundamentally or permanently than the current administration wishes. Still, even if this is the case, this tactic makes it difficult for observers to measure intent or effectiveness objectively. What appears prudent to some may seem like democratic erosion to others. 

In Closing
Each ruling without explanation, each appointment justified as procedural, moves the system one step further from transparency and accountability. The judiciary’s internal dissent is not just a technical dispute over legal interpretation. It is a warning from within the institution, which may or may not be repairable.

References
Varol, O. (2015). Stealth authoritarianism. Iowa Law Review, 100(4), 1673–1742.
Schwartz, M., & Montague, Z. (2025, October 11). Federal judges, warning of ‘judicial crisis,’ fault Supreme Court’s emergency orders. The            New York Times. https://www.nytimes.com/2025/10/11/us/politics/judicial-crisis-supreme-court-trump.html