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    ‘She is evil’: Amy Coney Barrett under attack by right wing after USAid ruling

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    Amy Coney Barrett, the Donald Trump-appointed conservative supreme court justice, has been branded a “DEI judge” by furious rightwing figures, after she voted to reject Trump’s attempt to freeze nearly $2bn in foreign aid.Coney Barrett, part of the court’s rightwing majority, split with her fellow conservative justices this week. She and John Roberts, the chief justice, voted to leave in place a ruling from a US district judge that ordered the Trump administration to unfreeze the nearly $2bn in aid for foreign aid work that had already been performed, and that had been approved by Congress.The reaction from pro-Trump rightwing commentators and activists was swift.“She is evil, chosen solely because she checked identity politics boxes. Another DEI hire. It always ends badly,” Mike Cernovich, a prominent rightwing influencer and conspiracy theorist, wrote on X, referencing diversity, equity and inclusion policies, which Republicans have demonized.Fox News host Mark Levin claimed in an online post that Barrett had “deceived people into thinking she was a reliable constitutionalist”. He added: “The power has gone to her head. It happens with frightening regularity the last half-century.”Laura Loomer, the rightwing activist who repeatedly traveled with Trump during his 2024 campaign, went even further. She posted a picture of Coney Barrett’s family, which includes two adopted Black children, and wrote: “Amy Coney Barrett was a DEI appointee.” Jack Posobiec, a popular Maga figure with more than 3m followers on X, posted that Coney Barrett was a “DEI judge”.Mike Davis, who was involved in the effort to confirm Trump nominees Neil Gorsuch and Brett Kavanaugh to the supreme court, appeared on Steve Bannon’s podcast to add his voice to the criticism.“She’s a rattled law professor with her head up her ass,” Davis said of Coney Barrett.He added: “As we work with the Trump 47 administration on the next supreme court list, we’re going to be looking for more bold, more fearless, less DEI, and people who are going to be more of a sure bet.”The branding of Coney Barrett as a liberal judicial figure will come as a surprise to those familiar with her work and legal history.Her appointment to the supreme court in October 2020 cemented the court’s 6-3 conservative majority, and she voted to overturn Roe v Wade, which established the right to abortion in the US, in 2022. An analysis by the Empirical Scotus website found that Barrett voted with Clarence Thomas and Samuel Alito – the court’s two most conservative justices – more than 80% of the time in 2023.However, before the vote to reject Trump’s attempt to withhold aid, she had sided with liberal justices to deny Trump’s request to delay sentencing in his New York hush-money case, and joined a dissent against a conservative-led decision that weakened rules on the discharge of raw sewage. More

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      Will Trump put a Fox News host on the US supreme court? Mark Tushnet can’t rule it out

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      Should Donald Trump get the chance to nominate a new justice to the supreme court, to join the three rightwingers he installed in his first term, he might pick “the equivalent of Pete Hegseth”, Mark Tushnet said, referring to the Fox News host who is now US secretary of defense.“Trump as a person has his idiosyncrasies, I’ll put it that way,” Tushnet said, from Harvard, where he is William Nelson Cromwell professor of law, emeritus. “And … I have thought about potential Trump nominees, and actually, what comes to mind is the equivalent of Pete Hegseth: a Fox News legal commentator.”Justice Jeanine Pirro? It’s a thought. Perhaps future historians will debate “The Box of Wine that Saved Nine”. Perhaps not.“I wouldn’t rule it out,” Tushnet said, of his Fox News theory, if not of Pirro, per se. “I don’t think it’s highly likely, but given the way those things work, and given the idea that you want people who aren’t simply judges, it’s not a lunatic thought, I guess.”The reference to “people who aren’t simply judges” is to arguments laid out in Tushnet’s new book, Who Am I to Judge?, in which he makes his case against the prevalence of judicial theories, particularly originalism, to which conservatives adhere, and calls for a rethink of how justices are selected.Tushnet is a liberal voice. Provocatively, he writes that Amy Coney Barrett, the third Trump justice who in 2022 helped remove the federal right to abortion, at least has a hinterland different from most court picks, as a member of People of Praise, a hardline Catholic sect.“I think her involvement in that group has exposed her to a much wider range of human experience than John Roberts’s background, for example,” Tushnet said, referring to the chief justice who was a Reagan White House aide and a federal judge. “And so if you’re looking for people who have been exposed to human experience across the board, I think she’s a reasonable candidate for that.”View image in fullscreenConey Barrett cemented the 6-3 rightwing majority that has given Trump wins including rejecting attempts to exclude him from the ballot for inciting an insurrection and ruling that presidents have some legal immunity. Now, as Trump appears to imagine himself a king and oversees an authoritarian assault on the federal government, reading Tushnet and talking to him generates a sort of grim humor.Looking ahead, to when Trump’s executive orders might land before the justices, Tushnet suggests “the court will put … speed bumps in the way of the administration. They won’t say: ‘Absolutely you can’t do it,’ except the birthright citizenship order.”That order, signed on Trump’s first day back in power, seeks to end the right to citizenship for all children born on American soil and subject to US jurisdiction, as guaranteed under the 14th amendment since 1868.On 23 January, a federal judge said Trump’s order was so “blatantly unconstitutional” that it “boggled” his mind. Should it reach the supreme court, Tushnet can see the rightwing justices “saying: ‘Look, yeah, if you want to do this, we’re not saying you can, but if you want to do it, you got to get Congress to go along. You can’t just do it on your own.’ So that would be a speed bump.”That said, Tushnet sometimes thinks “about how in the US, there are these traffic-calming measures that are literally speed bumps but sometimes, if you go over too fast, you fly”. Trump, he said, has licensed rightwing justices to take decisions that “may not count as speed bumps if you fly off them”.Tushnet was happy to answer a question he thinks all supreme court nominees should be asked: what’s your favorite book and favorite movie?Tushnet’s favorites are Middlemarch by George Eliot and Heaven, a 2002 film directed by Tom Tykwer from a script co-written by Krzysztof Kieślowski. He wrote his book containing such questions, he said, “because I had this longstanding sense that the [supreme court] nomination process has gotten off the rails, mostly by focusing exclusively on judges as potential nominees, and secondarily by focusing on constitutional theory.“For the past 20 years, the court … has been dominated by people whose background was as judges or appellate advocates, and historically that was quite unusual. There are always some judges but there always had been people with much broader kinds of experience, including a former president, William H Taft [chief justice between 1921 and 1930], and several candidates for the presidency, including Charles Evans Hughes [1916], Earl Warren [a vice-presidential pick in 1948], senators like Hugo Black. And those people had disappeared from consideration for the court, and that seemed to be a bad idea.”Tushnet describes a “political reconstitution of the nomination process provoked in large measure by the Republican reaction to the Warren court”, which sat from 1953 to 1969, the era of great civil rights reforms.“I think their view was the Warren court was not composed of judges, they were politicians, some called them ‘politicians in robes’, and Republicans sort of thought the way to get away from the substantive jurisprudence of the Warren court was to put judges on the court, rather than people with what I call broad experience,” Tushnet said.One justice on the current court was not previously a judge: Elena Kagan, one of the three besieged liberals, was dean of Harvard Law School, then solicitor general under Barack Obama.Tushnet “went into the project thinking that I would find more great justices who had been a politician than I actually did. When I was teaching, I would do this thing about who the justices were who decided Brown v Board of Education”, the 1954 ruling that ended segregation in public schools, “and I think it’s fair to say that not one of them’s primary prior experience was as a judge, and like seven or eight of their prior primary experiences were as a politician. And if Brown v Board is the premier achievement of the supreme court, the fact that it was decided by a court primarily made up of politicians counts in favor of thinking about politicians when appointing to the court.”“Why not do it? For me, the main feature of having been a politician is not that you’ve taken stances aligned with one or another political party at the time, but that you’ve provided reasons in many different ways, you’ve grown up amongst people with a wide range of life experiences that you’ve had to think about, as a politician, in order to get their votes, in order to get your way,” he said.Tushnet’s ideal might be Charles Evans Hughes, an associate justice from 1910 to 1916 and chief justice between 1930 and 1941, but also governor of New York, Republican candidate for president and US secretary of state.On the page, Tushnet imagines asking Hughes a question – “What constitutional theories do you use?” – and getting an appealing answer: “I try to interpret the constitution to make it a suitable instrument for governance in today’s United States.”Tushnet says modern judges and justices should say the same, rather than reach for judicial theories. His new book is in part an answer to a demolition of originalism by Erwin Chemerinsky, dean of UC Berkeley law school: “I distinguish, I think, more clearly than other people have, including Erwin, between what I call academic originalism and judicial originalism.”Either form of originalism concerns working out what the founders meant when they wrote the constitution, then advocating its application to modern-day questions. Tushnet “think[s] a good chunk of academic originalism is not subject to many of the criticisms that Erwin levels. It’s not perfect but it’s an academic enterprise, and people work out difficulties, and there’s controversy within the camp and so on.View image in fullscreen“Judicial originalism is different because it has a couple of components. One is, we now know it’s quite selective. To get originalism into the TikTok decision, for example, you have to do an enormous amount of work. It’s not impossible, but it’s not an originalist opinion, fundamentally. So [justices are] selectively originalist, or, as my phrase is, opportunistically originalist. They use it when the sources that they’re presented with support conclusions they would want to reach anyway, and the adversary process at the supreme court isn’t a very good way of finding out what they say they’re trying to find out. And so as a judicial enterprise, originalism just doesn’t do what it purports to do.”To Tushnet, the late Antonin Scalia, an arch-conservative and originalist, is “the leading candidate to be placed on a list of great justices” of the past 50 years, “because of his influence and his contributions to the court.“But one bad contribution was his widely admired writing style. Now, writing styles change over time. And having read an enormous number of opinions of the 1930s, I know there’s an improvement in readability since the 1930s. But the idea that [opinions] become more readable, accessible and memorable by including Scalia-like zingers, short phrases that are quotable and memorable, seems to be just a mistake. But he’s very influential, and so people try to emulate him … Justice Kagan does it in a gentler way. I guess my inclination would be to say: ‘If you’re going to do it, do it the way Justice Kagan does, rather than the way Justice Scalia did.’”Tushnet agrees that some of Scalia’s pugilistic spirit seems to have passed into Samuel Alito, the arch-conservative author of the Dobbs v Jackson ruling, which removed abortion rights, if while shedding all vestiges of humor.In his book, Tushnet shows how Alito’s Dobbs ruling contained a clear mistake, the sort of thing that is largely down to the role clerks play in drafting opinions, as Tushnet once did for Thurgood Marshall, the first Black American justice.“Times were quite different then,” Tushnet said. “The year I was there, the court decided 150 cases. Now they’re deciding under 50 a year … the year I was there was the year Roe v Wade was decided [1973, establishing the right to abortion, now lost]. It had been resolved fundamentally the year before, so they were just cleaning things up, but we knew these were consequential decisions.”The court will soon have more consequential decisions to make. In the meantime, talk of a constitutional crisis, of a president defying the courts, grows increasingly heated.“My sense is that we’re not at the crisis point yet,” Tushnet said. “Like many administrations before it, the Trump administration is taking aggressive legal positions, which may or may not be vindicated. If they’re not vindicated, they’re muttering about what they’ll do. That’s happened before.“My favorite example is that in the 1930s, Franklin Roosevelt, while a major decision was pending, had his staff prepare two press releases, one saying: ‘Actually the court has upheld our position,’ the other saying: ‘The court mistakenly rejected our position, and we’re going to go ahead with it anyway.’ Now, they didn’t have to issue that press release, because the court went with the administration. But, you know, muttering about resistance is not historically unusual. Resisting would be quite, quite dramatic, but we’re not there yet.”

      Who Am I to Judge? is published by Yale University Press More

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      Trump’s firing of watchdog agency chief illegal and would give ‘license to bully officials’, judge rules

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      A US judge on Saturday declared president Donald Trump’s firing of the head of a federal watchdog agency illegal in an early test of the scope of presidential power likely to be decided at the US supreme court.US district judge Amy Berman Jackson in Washington had previously ruled that Hampton Dellinger, head of the Office of Special Counsel who is responsible for protecting whistleblowers, could remain in his post pending a ruling.Jackson said in her ruling on Saturday that upholding Trump’s ability to fire Dellinger would give him “a constitutional license to bully officials in the executive branch into doing his will”.The justice department filed a notice late on Saturday saying it was appealing against Berman’s ruling to the US court of appeals for the district of Columbia.Dellinger, who was appointed by Democratic president Joe Biden and approved by the Senate to a five-year term last year, said in an email to Reuters he was “grateful to see the court confirm the importance and legality of the job protections Congress afforded my position”.He added his “efforts to protect federal employees generally, and whistleblowers in particular, from unlawful treatment will continue”.Lawyers for the Trump administration have argued that the order keeping Dellinger in place is an encroachment on Trump’s authority over officials serving in his administration.Jackson, who was named to the bench by president Barack Obama, rejected the contention that the statute is unconstitutional, saying the special counsel’s job is to review unethical or unlawful practices directed at federal civil servants and help whistleblowers act without suffering reprisals.“It would be ironic, to say the least, and inimical to the ends furthered by the statute if the special counsel himself could be chilled in his work by fear of arbitrary or partisan removal,” Jackson wrote.The Trump administration previously urged the US supreme court, which has already delayed a ruling in the case, to get involved earlier this week.Trump has sought to rein in the independence of federal agencies like the Federal Trade Commission, the Securities and Exchange Commission and the Federal Communications Commission and a ruling in Dellinger’s case could help determine the extent of his authority to do so.Jackson said her ruling was “extremely narrow” and did not diminish Trump’s powers. “This is the only single-headed agency left for the courts to consider, and it is unlike any of them,” she wrote.The acting solicitor general, Sarah Harris, said earlier that Dellinger’s continued work as special counsel was harming the Trump administration, pointing to Dellinger’s role on Tuesday in halting the firing of six probationary government workers the administration had sought to dismiss. More

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      US supreme court temporarily blocks firing of head of federal whistleblower protection office

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      The US supreme court on Friday temporarily kept on the job the head of the federal agency that protects government whistleblowers, in its first word on the many legal fights over the agenda of Donald Trump’s second presidency.The justices said in an unsigned order that Hampton Dellinger, head of the office of special counsel, could remain in his job at least until Wednesday. That’s when a lower-court order temporarily protecting him expires.With a bare majority of five justices, the high court neither granted nor rejected the administration’s plea to immediately remove him. Instead, the court held the request in abeyance, noting that the order expires in just a few days.US district judge Amy Berman Jackson has scheduled a Wednesday hearing over whether to extend her order keeping Dellinger at his post. The justices could return to the case depending on what she decides.Conservative justices Neil Gorsuch and Samuel Alito sided with the Trump administration, doubting whether courts have the authority to restore to office someone the president has fired. Acknowledging that some presidentially appointed officials have contested their removal, Gorsuch wrote that “those officials have generally sought remedies like backpay, not injunctive relief like reinstatement”.Liberal justices Sonia Sotomayor and Ketanji Brown Jackson would have rejected the administration’s request.The conservative-dominated court has previously taken a robust view of presidential power, including in last year’s decision that gave presidents immunity from prosecution for actions they take in office.The justice department employed sweeping language in urging the court to allow the termination of the head of an obscure federal agency with limited power. Acting solicitor general Sarah Harris wrote in court papers that the lower court had crossed “a constitutional red line” by blocking Dellinger’s firing and stopping Trump “from shaping the agenda of an executive-branch agency in the new administration’s critical first days”.The office of special counsel (OSC) is responsible for guarding the federal workforce from illegal personnel actions, such as retaliation for whistleblowing. Its leader “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office”.Dellinger was appointed by Joe Biden – who ended Trump’s first presidency by winning the 2020 election – and was confirmed by the Senate to a five-year term in 2024.“I am glad to be able to continue my work as an independent government watchdog and whistleblower advocate,” Dellinger said in a statement. “I am grateful to the judges and justices who have concluded that I should be allowed to remain on the job while the courts decide whether my office can retain a measure of independence from direct partisan and political control.”Harris said the court should use this case to lay down a marker and check federal judges who “in the last few weeks alone have halted dozens of presidential actions (or even perceived actions)” that encroached on Trump’s presidential powers.The court already has pared back a 1935 ruling, known as Humphrey’s Executor, that protected presidentially appointed and Senate-confirmed leaders of independent agencies from arbitrary firings.Conservative justices have called into question limits on the president’s ability to remove the agency heads. In 2020, for instance, the court by a 5-4 vote upheld Trump’s first-term firing of the head of the Consumer Financial Protection Bureau (CFPB).Chief justice John Roberts wrote for the court that “the President’s removal power is the rule, not the exception”. But in that same opinion, Roberts drew distinctions that suggested the court could take a different view of efforts to remove the whistleblower watchdog. “In any event, the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. It does not bind private parties at all or wield regulatory authority comparable to the CFPB,” Roberts wrote.The new administration already has indicated it would seek to entirely overturn the Humphrey’s Executor decision, which held that Franklin D Roosevelt could not arbitrarily fire a Federal Trade Commission member during his presidency. Trump has taken aim at people who are on the multimember boards that run an alphabet soup of federal agencies, including the National Labor Relations Board and the Merit System Review Board.Like Dellinger, they were confirmed to specific terms in office and the federal laws under which the agencies operate protect them from arbitrary firings. Lower courts have so far blocked some of those firings. More

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      Trump administration gives schools deadline to cut DEI or lose federal funds

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      The Trump administration is giving the US’s schools and universities two weeks to eliminate diversity initiatives or risk losing federal money, raising the stakes in the president’s fight against “wokeness”.In a memo on Friday, the education department gave an ultimatum to stop using “racial preferences” as a factor in admissions, financial aid, hiring or other areas. Schools are being given 14 days to end any practice that treats students or workers differently because of their race.Educators at colleges nationwide were rushing to evaluate their risk and decide whether to stand up for practices they believe are legal. The sweeping demand threatens to upend all aspects of campus operations, from essays on college applications to classroom lessons and campus clubs.It’s meant to correct what the memo described as rampant discrimination in education, often against white and Asian students.“Schools have been operating on the pretext that selecting students for ‘diversity’ or similar euphemisms is not selecting them based on race,” said Craig Trainor, the acting assistant secretary for civil rights. “No longer. Students should be assessed according to merit, accomplishment and character.”The guidance drew sharp backlash from civil rights groups and university groups. Some believe its vague language is meant to have a chilling effect, pressuring schools to eliminate anything touching on the topic of race even if it may be defensible in court.“Creating a sense of risk around doing work that might promote diverse and welcoming campuses is much more of the goal than a clear statement of existing law,” said Jonathan Fansmith, senior vice-president of government relations at the American Council on Education, an association of college presidents.The memo is an extension of Donald Trump’s executive order banning diversity, equity and inclusion programs. As legal justification, it cites the 2023 supreme court decision barring race as a factor in college admissions.“Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race,” it said.On Monday the education department announced it also cut $600m in grants for organizations that train teachers. The programs promoted “divisive” concepts such as DEI, critical race theory and social justice activism, the department said.Confusion around the implications of Trump’s anti-DEI order was apparent at last week’s confirmation hearing for education secretary nominee Linda McMahon. Asked whether classes on African American history would run afoul of Trump’s order, McMahon said she wasn’t certain.The California School Boards Association is awaiting legal guidance so it can advise schools on the Trump administration’s deadline, spokesperson Troy Flint said.“At this point there is not enough information for a step-by-step playbook that tells school districts if you were doing A then now you should do B, or perhaps eliminate the whole program entirely,” he said. “I know people want that granular level of detail. But this is a new era, with some novel civil rights theories and there is no definitive reference for what’s happening now.”The new guidance takes aim directly at college admissions, suggesting colleges have sought to work around the supreme court’s decision.College essays, for instance, cannot be used to predict a student’s race, the guidance says. In the supreme court decision, Chief Justice John Roberts said nothing prevents colleges “from considering an applicant’s discussion of how race affected his or her life,” though he warned that colleges couldn’t use essays as an indirect workaround to consider students’ race.The memo also said it’s unlawful for colleges to eliminate standardized testing requirements “to achieve a desired racial balance or to increase racial diversity”. Dozens of colleges across the US have dropped SAT and ACT requirements in recent years, citing concerns the exams favor students from high-income families.Practices that have long been commonplace could become legal liabilities, including recruiting in underrepresented areas or buying lists of potential students with certain academic and demographic information, said Angel B Pérez, the CEO of the National Association for College Admission Counseling.“Colleges and universities are going to find themselves between a rock and a hard place,” Pérez said. “They know that what they’re doing is not illegal, but they are worried that if they do not comply, not having federal funding will decimate them.”Some universities said they expect little change. At Oregon State University, a legal review concluded that its programs “are fully compliant with all state and federal laws”, according to a campus message from Rob Odom, vice-president of university relations and marketing.The department memo appears to take aim at scholarships for students from certain racial backgrounds. There’s been legal debate about whether the supreme court decision extends to financial aid, with some schools and institutions deciding to scrap racial requirements for some scholarships.The National Association of Student Financial Aid Administrators said there’s no consensus on the question, and the group is trying to understand how the memo could affect student aid.“The last thing students need when making plans about how to pay for college is uncertainty over when or whether they will receive financial aid they’ve been relying on,” the group said in a statement.Trump has called for the elimination of the education department, and Elon Musk’s so-called “department of government efficiency” (Doge) has slashed dozens of contracts deemed wasteful.The Doge team won a legal victory on Monday when a federal judge declined to block it from federal student loan records. The judge said the plaintiff, the University of California Student Association, failed to prove it was harmed by Doge’s access to the data. More

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      Trump administration files first supreme court appeal over firing of government watchdog

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      Donald Trump’s administration has asked the supreme court to approve the firing of the head of a federal agency dedicated to protecting whistleblowers in the first appeal of Trump’s new term and a key test of his battle with the judicial branch.Hampton Dellinger, the head of the office of the special counsel (OSC), is among the fired government watchdogs who have sued the Trump administration, arguing that their dismissals were illegal and that they should be reinstated.The OSC is an independent federal agency that serves as “a secure channel for federal employees to blow the whistle by disclosing wrongdoing”.It is also intended to enforce the Hatch Act, a 1939 law designed to ensure that government programs are carried out in a nonpartisan way, and to enforce a merit system by investigating and prosecuting racial discrimination, partisan political discrimination, nepotism and coerced political activity.Dellinger has said his office’s work was “needed now more than ever”, noting the “unprecedented” number of firings, in many cases without any specified cause, of federal employees with civil service protections in recent weeks by the Trump administration.On Wednesday, the federal judge Amy Berman Jackson reinstated Dellinger to his position pending a 26 February court hearing, writing that the language of the 1978 law that created Dellinger’s position “expresses Congress’s clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change”.According to that law, the special counsel “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office”.As the Trump administration implements sweeping firings throughout the federal government, Dellinger has argued that his dismissal, via a one-sentence email that did not specify the cause, was unlawful.Now, the Trump justice department has petitioned the supreme court to undo Jackson’s order, arguing that allowing a judge to reinstate an agency head for two weeks, pending a 26 February hearing on the case, is an impermissible check on presidential power.“Until now, as far as we are aware, no court in American history has wielded an injunction to force the president to retain an agency head,” Trump’s acting solicitor general, Sarah M Harris, wrote in the brief, obtained by the Associated Press on Sunday.The case is not expected to be docketed until after the supreme court returns from the Presidents’ Day holiday weekend, meaning the justices will not respond until Tuesday at the earliest.The Trump administration argues in its brief that letting the order in Dellinger’s case stand could “embolden” judges to issue additional blocks in the roughly 70 lawsuits the Trump administration is facing so far.skip past newsletter promotionafter newsletter promotionIt notes some of the dozen or more cases where judges have slowed Trump’s agenda, including by ordering the temporary lifting of a foreign aid funding freeze and blocking workers with Elon Musk’s so-called “department of government efficiency” team from accessing treasury department data for now.A supreme court ruling in favor of the Trump administration in the Dellinger case would overturn decades of precedent, legal experts have said. Conservative Trump supporters have been pushing for the supreme court to overturn the 1935 supreme court ruling protecting Congress’s power to shield the heads of independent agencies from being fired by a president.“Since my arrival at OSC last year, I could not be more proud of all we have accomplished,” Dellinger said in a statement to Politico last week. “The agency’s work has earned praise from advocates for whistleblowers, veterans, and others. The effort to remove me has no factual nor legal basis – none – which means it is illegal.”The office of the special counsel is separate from justice department special counsels, who are appointed by the attorney general for specific investigations, such as Jack Smith.The Associated Press contributed reporting More

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      The courts separate democracy from autocracy. Will Trump defy them?

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      Will the Trump administration defy the courts?JD Vance’s tweet last weekend that “judges aren’t allowed to control the executive’s legitimate power” has sparked widespread concern that the Trump administration might become the first in US history to do so. At least at this stage, it is not clear that it will come to that, notwithstanding the president’s proclivity for asserting limitless executive power. But as other countries’ experiences show, if he were to adopt the position of the US vice-president, Trump would be crossing perhaps the most fundamental line demarcating constitutional democracy from autocracy.Consider just a few examples. In Venezuela, Hugo Chávez spent years undermining the country’s supreme court, declaring that it lacked “legitimate and moral authority”. The former president later refused to comply with a 2003 order to demilitarize the Caracas police force, instead tightening military control over law enforcement to entrench his power. In Hungary, after failing to enforce rulings of the constitutional court, Viktor Orbán’s government openly defied the European Union’s highest court’s ruling finding Hungary’s restrictive asylum scheme in violation of EU law. Likewise, in Turkey, Recep Tayyip Erdoğan systematically ignored domestic and European court of human rights rulings that ordered the government to release journalists and other political activists critical of his government.Nothing is more challenging to an authoritarian than an independent judiciary ready to hold the leader accountable. When would-be authoritarians perceive judicial oversight as a threat, they respond by dismissing and defying court rulings or otherwise undermining judicial independence. By the time the authoritarian takeover is complete, the judiciary is rendered toothless. Courts are especially vulnerable to such moves because they do not have their own enforcement arms.To be sure, we are not there yet. But Vance seems to see these examples not as object lessons in what not to do, but as models for the US president to follow. In 2021, Vance said his “one piece of advice” to Trump for a second term would be to “fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people … And when the courts – because you will get taken to court – and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’” (It is disputed whether Jackson even said this, but in any event he never defied the court.)In Trump’s last term, he had a worse won-lost record in the supreme court than any president since Franklin Delano Roosevelt – yet he abided by all court orders. And in the wake of concern about Vance’ s comments, Trump said he always obeys courts, but will pursue appeals. Thus far, that seems to be the case. But no responsible government official – much less the No 2 official in the executive branch – should even suggest that defying the courts is appropriate.View image in fullscreenTrump’s right-hand man, Elon Musk, is also fanning the flames. On 8 February, hours after a federal judge in New York temporarily blocked Musk’s team from accessing sensitive personal information held by the Department of the Treasury on millions of Americans, Musk shared a tweet from another user saying: “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us.” The next day, Musk posted: “A corrupt judge protecting corruption. He needs to be impeached NOW!”On 12 February, Musk tweeted: “Bravo!” in response to a claim by El Salvador’s autocratic president, Nayib Bukele, that he had impeached judges in 2021 “and then proceeded to fix the country”. Musk added: “We must impeach judges who are grossly undermining the will of the people and destroying America. It is the only way.” Bukele’s removal of five constitutional court judges in 2021 is widely regarded as a “technical coup” that paved the way for him to seek re-election in violation of constitutional term limits. Musk is no lawyer, but he should know that in the US, impeachment is reserved for “high crimes and misdemeanors”, not decisions Musk does not like.Government officials are of course free to criticize court decisions. But Vance’s and Musk’s comments echo those of authoritarian regimes around the world, which often seek to undermine the legitimacy of any institution that might constrain their actions – the courts, the press, the non-profit sector. The criticism is often the first step in a campaign to sweep away all constraints.The federal courts in the US system are given independence and final say on legal disputes so that they can act as a check on the political branches. In 1975, the supreme court explained that “all orders and judgments of courts must be complied with promptly.” Indeed, the chief justice, John Roberts, in his annual end-of-year report on the federal judiciary in 2024, identified “threats to defy lawfully entered judgments” as one of the core issues that “threaten the independence of judges on which the rule of law depends”.The moment of truth may come soon. More than 60 lawsuits have been filed challenging Trump’s initial measures – from seeking to revoke birthright citizenship to freezing federal funding. Nearly every court to rule thus far has ruled against the administration.Were the Trump administration to follow Vance’s and Musk’s advice and defy the supreme court, the fallout would be swift, widespread – and justified. The supreme court has limited formal resources to compel the president to follow its dictates, because the president, not the courts, oversees federal law enforcement. Despite that formal reality, defiance would be an impeachable offense – and if the Republican party stood behind the president at that point, it would pay greatly at the polls. That’s because few principles are as fundamental to the American system as the notion that the supreme court has final say on constitutional and statutory issues and its orders must be obeyed. Trump would cross that line at his own, his party’s, and the country’s peril.

      Amrit Singh is a law professor and executive director of the Rule of Law Impact Lab at Stanford Law School. David Cole is a professor at Georgetown Law and former legal director of the ACLU More

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      The courts are a crucial bastion against Trump. What if he ignores their orders?

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      Years before he became the US vice-president and openly advocated defiance of the courts over the Trump administration’s blitz through the federal bureaucracy and constitution, JD Vance revealed his contempt for legal constraints.In 2021, Vance predicted that Donald Trump would again be elected president and advised him to “fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people”.“Then when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it,’” he told the Jack Murphy Live podcast.Whether the seventh American president actually said that remains disputed, but the sentiment is alive and well as the Trump administration defies federal court orders to at least pause its subversion of the constitution and destructive rampage through the federal bureaucracy led by Elon Musk.In the absence of action by Congress to defend its powers, it has been government workers, state attorneys general and unions who have counterattacked, with a flurry of lawsuits – challenging presidential orders to limit the constitutional right of anyone born in the US to be a citizen, a federal funding freeze, and the dismissal of corruption watchdogs, among other measures. Nearly 50 legal challenges have been filed in the last three weeks, an unprecedented pushback in the courts against a new administration.The lawsuits have resulted in a string of court rulings. They have put a hold on some of Trump’s executive orders freezing some spending. They have also restricted Musk, head of the so-called “department of government efficiency”, from sending his staff to rifle through the financial records of federal agencies such as the US Agency for International Development (USAid) and the education department as a means to restrict their work or even close them down.But it quickly became apparent that the administration was defying some of the court orders, while its supporters attacked what they called “rogue judges” for ruling against Trump – and Vance portrayed the courts as just another bureaucratic obstacle to the president implementing the people’s will.That has prompted warnings from legal scholars, including Erwin Chemerinsky, dean of the University of California Berkeley law school, of a constitutional crisis in the making.“It’s very frightening to think that they will disobey court orders. If they don’t, it will be a constitutional crisis unlike anything this country has seen, because if the president can violate constitutional laws and disobey court orders then the name for that is a dictatorship,” he said.“This isn’t the realm of normal. What we’ve seen in the first three weeks is unprecedented in American history.”The judge John McConnell has accused the Trump administration of deliberately disobeying an order obliging the government to reinstate billions of dollars in grants. Another judge, Loren AliKhan, accused the administration of defying its legal obligations after she ordered the office for budget and management (OMB) to halt a spending freeze.Vance pushed back against the rulings on X.“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” he wrote.“Judges aren’t allowed to control the executive’s legitimate power.”Musk called for one of the judges involved to be impeached.Trump won a victory on Thursday when a judge ruled in favour of Musk’s offer to almost all of the 2 million-strong federal workforce of eight months of pay for not working if they resign now. The email’s subject line, “Fork in the Road”, was the same as one he used in a message to employees when he bought Twitter in 2022 and got rid of about 80% of its staff. Shortly after the deadline set by the email for voluntary redundancy, which was accepted by about 65,000 federal workers, unions said involuntary dismissals had begun.Karoline Leavitt, the White House press secretary, praised the rare court victory.“This goes to show that lawfare will not ultimately prevail over the will of 77 million Americans who supported President Trump and his priorities,” she said.But mostly the courts have so far ruled against the Trump administration as it pursues a power grab.The American Bar Association, which represents hundreds of thousands of lawyers in the US, has condemned what it called the Trump administration’s “wide-scale affronts to the rule of law itself”.“We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law,” it said.The ABA also condemned “efforts to dismiss employees with little regard for the law and protections they merit” and social media posts intended “to inflame”.“This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law,” it said.It’s likely that at least some of the flood of lawsuits will end up before the supreme court. The administration may in fact want to see some cases reach the highest court, which has a solid conservative majority after Trump appointed three of its nine justices during his first term, as it seeks to consolidate even more power in the presidency over issues such as who has final control over spending allocated by Congress.But the process of moving through district and appeals courts before making it to the supreme court is unlikely to be swift, by which time Musk may already have achieved much of what he aims to do in wrecking the work of USAid, the education department and other federal agencies.Then there is the unpredictability of a supreme court that has already overturned precedent in striking down the right to abortion.Chemerinsky believes the Trump administration is all but certain to lose cases on birthright citizenship, the freeze on spending and the dismissals of commissioners that oversee labour rights, consumer protection and equal employment opportunities, because they are in breach of federal law. He said the court was also likely to order the administration to back down from attempts to eliminate individual agencies created by Congress.But what if the administration follows Vance’s call to openly defy the courts? Chemerinsky said that would set up “a constitutional confrontation unlike any we’ve seen”.“The courts have limited ability to enforce their orders. They could hold individuals other than the president in contempt of court. They could figure out who’s responsible for carrying out the court order and hold that person in contempt with fines or jail for civil contempt. But the idea of the courts holding a cabinet secretary, an attorney general, a secretary of defence in contempt is just unheard of in the United States,” he said.“It’s so hard to imagine where we’ll be in four years. When you think about what’s going on in just three weeks, it’s certain Donald Trump is claiming expansive executive power beyond what any president has ever asserted. How much will the courts allow that? There’s no way to know.” More

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      Without proof, top Trump adviser accuses January 6 committee of destroying evidence – as it happened

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      Jason Miller, a top adviser to Donald Trump, went on CNN earlier today to defend the president-elect’s assertion that the bipartisan House committee tasked with investigating the January 6 insurrection destroyed evidence.Trump used that claim to then argue that the lawmakers who took part in the investigation should go to jail. The assertion appears factually wobbly, since the committee’s report and its evidence remains easily accessible online.Asked in the CNN interview if Trump would have Kash Patel, his nominee to lead the FBI, go after the committee members, Miller responded:
      I do have to take issue with saying that the select committee didn’t go and destroy records. They have wiped everything out …
      Other committees have looked through and said that those records are gone, that they don’t exist, that they’re not there. Even Republicans who are now in charge have said that those records are gone, that they’re not there. So I would completely take issue with that. We’re going to have to agree to disagree, but they got rid of it.
      But he seemed to moderate Trump’s comments slightly, arguing that the president-elect expects Patel and Pam Bondi, Trump’s pick for attorney general, “to apply the law equally”:
      He wants everyone who he puts into key positions of leadership, again, whether that’s Pam Bondi as the AG, Kash Patel, the FBI, or anybody else, to apply the law equally to everybody. Now, that means, if you’re somebody who’s committed some very serious crimes, who’s committed very serious felonies, who’s, for example, leaked confidential information, in direct violation of laws that are in place, well, then, obviously, that sets you up for different things …
      But as far as the politics aspect, if you listen to the entire interview with President Trump, he said he’s going to leave that up to the law enforcement agents in charge, including Pam Bondi and Kash Patel.
      Donald Trump this weekend made clear he would pardon rioters facing charges or convicted of involvement in January 6, while saying members of the bipartisan House committee that investigated the violence “should go to jail”. That prompted a response from its vice-chair, Republican former congresswoman Liz Cheney, who rejected his criticism, saying: “Trump attempted to overturn the 2020 presidential election and seize power.” Meanwhile, the supreme court turned aside an effort by Trump’s attorneys to lift the gag order imposed on him in his hush-money case.Here’s what else happened today:

      Jason Miller, a top adviser to Trump, said the House committee that investigated January 6 destroyed evidence, but provided no proof for his claim. He also slightly walked back Trump’s quip that the lawmakers involved should be jailed.

      Markwayne Mullin, a Republican senator, said the January 6 committee members do not “have a reason to be afraid now”, but that their work is worth of investigating.

      Jim Clyburn, a veteran Democratic congressman, warned that Trump’s comments should be taken seriously, adding that they were reminiscent of the rhetoric that led to the rise of Jim Crow.

      Two senators proposed a constitutional amendment to impose term limits on supreme court justices, but it faces long odds.

      Chuck Grassley, the Iowa Republican who will chair the Senate judiciary committee next year, sent the FBI director and his deputy a letter saying they should resign for not cooperating with Congress and politicizing the bureau.
      Donald Trump’s nominee for defense secretary is back on Capitol Hill for more meetings with Republican senators, including Joni Ernst, whose views on him are seen as vital to his chances of confirmation.Ernst, a combat veteran and sexual assault survivor, has signaled hesitance with confirming Hegseth, after reports emerged of his excessive drinking and poor treatment of women, including a sexual assault allegation.Hegseth and Ernst met again today, but it wasn’t clear if the senator had made up her mind about Trump’s Pentagon pick. As he left her office, Hegseth said that it was a “very good meeting”, but little else.Chuck Grassley, the long-serving Iowa senator who will chair the chamber’s judiciary committee next year, has called for the FBI director, Christopher Wray, and his deputy to resign, saying they politicized the agency and refused to cooperate with him.Should Wray and his deputy FBI director, Paul Abbate, heed Grassley’s call, it would clear the way for Senate Republicans to confirm the former defense official Kash Patel to the job. Patel has drawn concern for calling for the imprisonment of journalists and vowing to radically downsize the FBI.In a letter sent to Wray, Grassley wrote:
      Rather than turn over a new leaf at the FBI, you’ve continued to read from the old playbook of weaponization, double standards, and a relentless game of hide-and-seek with the Congress. As your tenure as FBI director comes to an end, I want to take this opportunity to tell you where you went wrong, for the benefit of the bureau and that of your successor.
      Grassley went on to criticize Wray and Abbate for not being forthcoming enough on a range of matters, including sexual harassment claims made by female FBI employees, the vetting of evacuees from Afghanistan, and its agents’ search of Mar-a-Lago for classified materials Donald Trump was accused of hiding there.Grassley concludes:
      For the good of the country, it’s time for you and your deputy to move on to the next chapter in your lives. I’ve spent my career fighting for transparency, and I’ve always called out those in government who have fought against it. For the public record, I must do so once again now. I therefore must express my vote of no confidence in your continued leadership of the FBI. President-elect Trump has already announced his intention to nominate a candidate to replace you, and the Senate will carefully consider that choice. For my part, I’ve also seen enough, and hope your respective successors will learn from these failures.
      If they do not step down, Trump has the power to fire them.In his interview with NBC, Donald Trump also mulled putting his health secretary nominee, Robert F Kennedy Jr, in charge of researching the very vaccines he has pushed conspiracy theories against. Here’s more, from the Guardian’s Robert Tait:Donald Trump has said Robert F Kennedy Jr, his nominee for health secretary, may investigate a supposed link between vaccines and autism – despite a consensus among the medical establishment debunking any such connection.In a wide-ranging interview with NBC, the US president-elect claimed an investigation was justified by the increasing prevalence of autism diagnoses among American children over the past 25 years.“When you look at what’s going on with disease and sickness in our country, something’s wrong,” Trump said after the interviewer, Kristen Welker, asked him if he wanted to see some vaccines eliminated – a position for which Kennedy has argued.“If you take a look at autism, go back 25 years, autism was almost nonexistent. It was, you know, one out of 100,000 and now it’s close to one out of 100.”According to the Centers for Disease Control and Prevention (CDC), one out of every 36 children in the US were diagnosed with autism in 2020, compared with one in 150 in 2000.Kennedy, a noted vaccine sceptic, has repeatedly peddled discredited theories that the conditions is caused by childhood vaccinations.“I do believe that autism does come from vaccines,” he said in a 2023 Fox News interview in which he called for more vaccine testing.“We should have the same kind of testing place or control trials that we have for other every other medication. Vaccines are exempt from pre-licensing control trials, so that there’s no way that anybody can tell the risk profile of those products, or even the relative benefits of those products before they’re mandated. We should have that kind of testing.”Jason Miller, a top adviser to Donald Trump, went on CNN earlier today to defend the president-elect’s assertion that the bipartisan House committee tasked with investigating the January 6 insurrection destroyed evidence.Trump used that claim to then argue that the lawmakers who took part in the investigation should go to jail. The assertion appears factually wobbly, since the committee’s report and its evidence remains easily accessible online.Asked in the CNN interview if Trump would have Kash Patel, his nominee to lead the FBI, go after the committee members, Miller responded:
      I do have to take issue with saying that the select committee didn’t go and destroy records. They have wiped everything out …
      Other committees have looked through and said that those records are gone, that they don’t exist, that they’re not there. Even Republicans who are now in charge have said that those records are gone, that they’re not there. So I would completely take issue with that. We’re going to have to agree to disagree, but they got rid of it.
      But he seemed to moderate Trump’s comments slightly, arguing that the president-elect expects Patel and Pam Bondi, Trump’s pick for attorney general, “to apply the law equally”:
      He wants everyone who he puts into key positions of leadership, again, whether that’s Pam Bondi as the AG, Kash Patel, the FBI, or anybody else, to apply the law equally to everybody. Now, that means, if you’re somebody who’s committed some very serious crimes, who’s committed very serious felonies, who’s, for example, leaked confidential information, in direct violation of laws that are in place, well, then, obviously, that sets you up for different things …
      But as far as the politics aspect, if you listen to the entire interview with President Trump, he said he’s going to leave that up to the law enforcement agents in charge, including Pam Bondi and Kash Patel.
      The idea is not new. Similar bills, like the Supreme Court Tenure Establishment and Retirement Modernization Act of 2023, which was introduced in the US house of representatives and has more than 60 co-sponsors, also calls for 18-year terms for supreme court justices and the establishment of a process for the president to appoint a new justice every two years.Another bill introduced this year by Senator Ron Wyden of Oregon, called the Judicial Modernization and Transparency Act, also called for overhauling the supreme court. But unlike the amendment proposed by Welch and Manchin, this would not limit their terms, but rather the total number of justices, allowing for expanding the court from nine to 15.The Brennan Center for Justice at NYU School of Law says supreme court justices are getting appointed at younger ages and living longer than they used to, which means they are sitting on the court longer than usual.Donald Trump appointed more justices during his first term than Barack Obama or George W Bush did during each of their two-term presidencies respectively.About two-thirds of Americans support imposing term limits on the members of the nation’s highest court, according to the results of the the University of Pennsylvania’s Annenberg Constitution Day Civics Survey released in September.Although Senator Joe Manchin of West Virginia, who co-authored the proposed amendment to limit the supreme court justice terms with Welch, is seen as an obstructionist by Democrats, this latest proposal is a popular idea within the party.The progressive House member Alexandria Ocasio-Cortez last year said: “We have a broad level of tools to deal with misconduct, overreach and abuse of power in the supreme court [that] has not been receiving the adequate oversight necessary in order to preserve their own legitimacy.“And in the process, they themselves have been destroying the legitimacy of the court, which is profoundly dangerous for our entire democracy.”Manchin left the party in May and registered as an independent after criticism for pushing against Joe Biden’s ambitious legislative goals, like those related to tackling the climate crisis or taxing the wealthy.Senator Pete Welch of Vermont took to X to announce his amendment to impose term limits on supreme court justices. He wrote:
      No other major democracy in the world gives lifetime seats to judges who sit on their highest court. It leads to divisive confirmation processes and reduced trust from the public.
      Donald Trump this weekend made clear he would pardon rioters facing charges or convicted of involvement in January 6, while saying members of the bipartisan House committee that investigated the violence “should go to jail”. That prompted a response from its vice-chair, Republican former congresswoman Liz Cheney, who rejected his criticism, saying: “Trump attempted to overturn the 2020 presidential election and seize power”. Meanwhile, the supreme court turned aside an effort by Trump’s attorneys to lift the gag order imposed on him in his hush-money case.Here’s what else has happened today so far:

      Markwayne Mullin, a Republican senator, said the January 6 committee members do not “have a reason to be afraid now”, but that their work is worth of investigating.

      Jim Clyburn, a veteran Democratic congressman, warned that Trump’s comments should be taken seriously, adding that they were reminiscent of the rhetoric that led to the rise of Jim Crow.

      Two senators proposed a constitutional amendment to impose term limits on supreme court justices, but it faces long odds.
      The Democratic senator Peter Welch and independent senator Joe Manchin have proposed a constitutional amendment that would impose term limits on supreme court justices, saying such a move is necessary to restore faith in the nation’s highest court.“The current lifetime appointment structure is broken and fuels polarizing confirmation battles and political posturing that has eroded public confidence in the highest court in our land. Our amendment maintains that there shall never be more than nine justices and would gradually create regular vacancies on the Court, allowing the President to appoint a new justice every two years with the advice and consent of the United States Senate,” said Manchin, who is weeks away from concluding his 14 years of representing West Virginia.The senators cited one of many surveys that found dismal approval ratings for the court, where conservatives have a six-justice supermajority and liberals a three-justice minority. Welch, a recent arrival in the chamber who represents Vermont, said:
      Taking action to restore public trust in our nation’s most powerful Court is as urgent as it is necessary. Setting term limits for Supreme Court Justices will cut down on political gamesmanship, and is commonsense reform supported by a majority of Americans.
      Here’s how their proposal would work:
      The amendment would institute nonrenewable, 18-year terms for new U.S. Supreme Court Justices, with a new term starting every two years …
      The proposed amendment would not adjust the tenure of sitting Justices, but rather institute a transition period to maintain regular vacancies as current Justices retire. During that period, 18-year terms will begin every two years, regardless of when a current Justice leaves the bench. Once a current Justice retires, the newly appointed Justice will serve out the remainder of the next open 18-year term. The amendment would not change the overall number of Justices on the Court.
      It’s unlikely the idea will go far, particularly with Republicans in January assuming the majority in the chamber tasked with confirming the president’s appointments to the supreme court.It’s also proven difficult to win ratification of constitutional amendments. None has been approved since 1992, and the process typically requires the approval of supermajorities in the Senate and House of Representatives, as well as the legislatures in three-fourths of states.Police in Pennsylvania are reportedly questioning a man in connection with the murder of the UnitedHealthcare CEO, Brian Thompson, in New York City last week.News of Thompson’s murder was greeted with sympathy and cheers on some corners of social media, particularly from people who are critical of the insurer’s treatment of its customers. Over the weekend, the Democratic congressman Ro Khanna reacted to that sentiment by saying it is a sign that the US healthcare system needs real reform. Here’s more:
      Progressive congressperson Ro Khanna has sympathy for the murdered UnitedHealthcare CEO, Brian Thompson – yet at the same time is not surprised that the killing reignited a national dialogue about inequities in the US healthcare system, he said in an interview on Sunday.
      ‘It was horrific,’ the California Democrat said on ABC This Week with respect to the slaying of Thompson, whose survivors include his widow and two sons ages 16 and 19. ‘I mean, this is a father we’re talking about – of two children, and … there is no justification for violence.
      ‘But the outpouring afterwards has not surprised me.’
      Khanna told the show’s host, Martha Raddatz, that he agreed with fellow liberal and US senator Bernie Sanders when he wrote recently on social media: ‘We waste hundreds of billions a year on health care administrative expenses that make insurance CEOs and wealthy stockholders incredibly rich while 85 million Americans go uninsured or underinsured. Health care is a human right. We need Medicare for all.
      ‘After years, Sanders is winning this debate,’ Khanna said, referring to the Vermont senator’s support for a single-payer national health insurance system seen in other wealthy democracies. More