Thanks to Trump and the Supreme Court, we’re facing a legal emergency

Over the past ten years we’ve seen countless letters signed by experts and former officials decrying something President Donald Trump has said or done. Whether it’s scientists, economists, national security and intelligence veterans or doctors, just to name a few, thousands of people with impeccable credentials and decades of experience have put their reputations on the line by publicly sounding the alarm about the Trump administration’s illiberal, destructive policies. None of it has seemed to make any difference.

But those five-alarm warnings are still important and necessary, if only to maintain an historical record of dissent should we manage to emerge from this dark time with some shell of our nation intact. Legal scholars, former judges and law professors are having a collective heart attack over what the administration, particularly the Justice Department and Supreme Court, are doing to the rule of law and the Constitution. Right now, the only bulwark appears to be the lower courts.

Before the 2024 election, the New York Times interviewed fifty highly respected members of the legal establishment. Both parties were evenly represented; those interviewed had held essential jobs in every presidential administration since Ronald Reagan. Most told the Times they were concerned about a second Trump term based on what he had done in the first.

Even so, some who had previously worked with Trump vouched for the Justice Department’s inherent integrity, stressing that, given the department’s structure, it would be very difficult for its employees to act in bad faith. And since Trump preferred appointees with elite credentials, they assumed he would only hire qualified and experienced people. When the Times recently caught up with these former officials, their hair was on fire.

“Eight months into his second term,” they reported, “Trump has taken a wrecking ball to those beliefs. ‘What’s happening is anathema to everything we’ve ever stood for in the Department of Justice,’ said another former official who served in both Democratic and Republican administrations, including Trump’s first term… The responses captured almost universal fear and anguish over the transformation of the Justice Department into a tool of the White House.”

The story noted that, this time, many more refused to speak on the record because they feared retribution from the White House, which is chilling in itself, if unsurprising. For every political elite who has the guts to speak out right now, there are five more who have been cowed into silence.

Remember, this group includes half Republicans, quite a few of whom worked for Trump in the first term. And yet “all but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.”

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Ahead of Trump’s inauguration in January, we knew congressional Republicans would rubber stamp everything the president wanted, so there’s no surprise there. And it was no secret that the administration would be prepared to push the envelope beyond anything from Trump’s first term. Nevertheless, I didn’t think Trump would appoint internet trolls and far-right agitators, such as Kash Patel and Dan Bongino — who became the director and deputy director of the FBI — to such important roles. Even loyalists like Attorney General Pam Bondi and Homeland Security Secretary Kristi Noem, I expected, would be concerned about maintaining a face of seriousness and professionalism.

The Times pointed out that in Trump’s first term, especially toward the end, the system held mainly because even sympathetic loyalists like former Attorney General Bill Barr and Deputy Attorney General Jeffrey Rosen refused to go along with the president’s bogus election claims. This time around, the former officials know that will not happen: “‘No one in the room now will say no,’” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of ‘bad ideas’ were the wrong kind of lawyers.”

These former insiders were apparently unable to see just how radicalized Trump and his accomplices had become once having learned how to maneuver the levers of power. No one is more responsible for that than the Supreme Court.

The court’s immunity decision alone gave Trump the green light to do whatever he wanted and let everyone else pick up the pieces. Coupled with the misuse and abuse of the court’s emergency — or “shadow” — docket, the conservative majority has only reinforced the idea that the president is to be given total latitude without constitutional restraint.

A number of lower court judges have expressed concern about the high court’s terse orders on these shadow docket rulings, most of which have overturned their judgments to favor the president’s position — and leaving them vulnerable to threats from right-wing commentators, and even the White House. White House deputy chief of staff Stephen Miller recently posted on X that judges who rule against the president are committing “legal insurrection” and claimed: “There is a large and growing movement of left-wing terrorism in this country. It is well organized and funded and it is shielded by far-left judges, prosecutors and attorneys general. The only remedy is to use legitimate state power to dismantle terrorism and terror networks.”

It takes courage to maintain integrity in the face of comments like that by someone with such power.

Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh have all issued rebukes to lower courts that deigned to question their reasoning. Justice Amy Coney Barrett, appearing on Fox News over the weekend, explained that the court didn’t want to provide reasoning for using the shadow docket to overturn these lower court rulings — many of which actually upheld established precedent in denying Trump’s radical power grabs — because the justices might change their minds later. Meanwhile, the author of the immunity decision, Chief Justice John Roberts, has appeared so blind to the consequence and destruction the court has wreaked that leading legal scholars have compared him to Roger Taney, the chief justice whose illustrious reputation was forever defiled by his Dred Scott opinion.

Some have suggested that all this adds up to a constitutional crisis. Justice Barrett had insisted it does not. But there can be little doubt we are in the midst of an historic legal emergency — and, so far, the only people who appear to be preventing our system of justice from crumbling entirely are the states and lower federal courts. May they have the fortitude to hold out, or things will get much worse.