Trump administration ramps up rhetoric targeting the courts amid
mounting legal setbacks
[March 17, 2025]
By NICHOLAS RICCARDI
The new populist president railed against the judiciary as they blocked
his aggressive moves to restructure his country’s government and
economy.
This was in Mexico, where former President Andrés Manuel López Obrador
eventually pushed through changes that required every judge in his
country to be elected rather than appointed. The reforms, and the
promise of more by his successor, caused markets to lose confidence in
his country’s reliability as a place to invest, which led its currency
to weaken.
It was one in a series of assaults that populists around the globe have
launched on the courts in recent years, and legal observers now wonder
if the United States could be next.
As the courts deliver a series of setbacks to his dramatic attempt to
change the federal government without congressional approval, President
Donald Trump's supporters are echoing some of the rhetoric and actions
that elsewhere have preceded attacks on the judiciary.
Trump’s deputy chief of staff, Stephen Miller, posted last week on X:
“Under the precedents now being established by radical rogue judges, a
district court in Hawaii could enjoin troop movements in Iraq. Judges
have no authority to administer the executive branch. Or to nullify the
results of a national election.”
“We either have democracy,” said Miller, who once ran a legal group that
sued to get judges to block former President Joe Biden’s initiatives,
“or not.”
Trump’s supporters in Congress have raised the specter of impeaching
judges who have ruled against the administration. Elon Musk, the
billionaire Trump backer whose Department of Government Efficiency has
ended up in the crosshairs of much of the litigation, has regularly
called for removing judges on his social media site, X.
On Sunday, the chairman of the Senate Judiciary Committee, Republican
Chuck Grassley, reacted furiously to a Washington judge's order briefly
halting deportations under an 18th century wartime law that Trump
invoked hours earlier.
“Another day, another judge unilaterally deciding policy for the whole
country. This time to benefit foreign gang members,” Grassley wrote. “If
the Supreme Court or Congress doesn’t fix, we’re headed towards a
constitutional crisis.”
Activists contend it's the administration that's increasing the odds of
a crisis.
“They don’t like what they’re seeing in the courts, and this is setting
up what may very well be a constitutional crisis about the independence
of the judiciary,” said Heidi Beirich, founder of the Global Project
Against Hate and Extremism.
‘Threats against constitutional government’
Despite the rhetoric, the Trump administration has so far not openly
defied a court order, and the dozens of cases filed against its actions
have followed a regular legal course. His administration has made no
moves to seek removal of justices or push judicial reforms through the
Republican-controlled Congress.
Justin Levitt, a law professor at Loyola Marymount University and voting
rights expert who previously served in the Justice Department's civil
rights division, said he’s no fan of Trump’s moves. But he said the
administration has been following legal norms by appealing decisions it
doesn't like.
“I think most of this is bluster,” said Levitt, noting courts can
imprison those who don’t obey orders or levy crippling fines that double
daily. “If this is the approach the executive wants to take, it’s going
to provoke a fight. Not everybody is going to be content to be a doormat
the way Congress is.”
Even if no firm moves are underway to remove judges or blatantly ignore
their rulings, the rhetoric has not gone unnoticed within the judiciary.
Two Republican-appointed senior judges last week warned about the rising
danger of the judiciary being targeted.
“Threats against judges are threats against constitutional government.
Everyone should be taking this seriously,” said Judge Richard Sullivan,
whom Trump in his first term appointed to the federal appeals court in
New York.
Targeting judges an ‘authoritarian instinct’
In Mexico, López Obrador was termed out of office last year. But several
other populist Trump allies who have shown no inclination to leave power
have made their judiciaries a central target.
Hungary’s Viktor Orbán lowered the mandatory retirement age for judges
to force out some who might have blocked his agenda. In Brazil, former
President Jair Bolsonaro’s supporters have feuded with that country’s
high court. After Bolsonaro was charged with trying to overturn his 2022
election loss, his party is hoping to win enough seats in next year’s
elections to impeach at least one of the justices. In El Salvador,
President Nayib Bukele's party removed supreme court justices with whom
he had clashed.
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President Donald Trump listens as Elon Musk speaks in the Oval
Office at the White House, Tuesday, Feb. 11, 2025, in Washington.
(AP Photo/Alex Brandon, File)
Bukele has even egged Trump on to take on the judiciary: “If you
don’t impeach the corrupt judges, you CANNOT fix the country,”
Bukele wrote on X, following a post by Musk urging Trump to follow
the Salvadoran president’s lead.
“This is a basic authoritarian instinct,” said Steven Levitsky,
coauthor of “How Democracies Die" and a Harvard political scientist.
“You cannot have a democracy where the elected government can do
whatever it wants.”
It would take two-thirds of the U.S. Senate to remove an impeached
judge. With only 53 Republicans in the chamber, it’s highly unlikely
that supermajority could be reached. The Trump administration,
though, has expressed exasperation at the frequency with which lower
courts are ruling against it.
U.S. presidents have long clashed with the courts
Saturday night, the judge blocked a round of deportations of people
Trump officials claimed were gang members, though the administration
ended up deporting more than 200 anyway. Another judge in San
Francisco required the administration to rehire tens of thousands of
federal workers he ruled had likely been improperly fired. The
administration appealed several rulings putting on hold its effort
to end the constitutional guarantee of birthright citizenship to the
Supreme Court.
And the administration is still fighting with aid organizations that
contend the government has not complied with a federal judge’s order
to pay them for work performed under contract with the U.S. Agency
for International Development.
“You have these lower-level judges who are trying to block the
president’s agenda. It’s very clear,” Trump spokeswoman Karoline
Leavitt said on Friday, adding that judges have issued 16 orders
blocking Trump initiatives compared to 14 against Biden during the
previous four years.
Presidents have groused about being checked by courts for decades.
Biden complained when the courts blocked his efforts to forgive
student loan debt. Former President Barack Obama warned the
conservative majority on the U.S. Supreme Court not to overturn his
landmark health care expansion.
In the 1930s, then-President Franklin Delano Roosevelt tried to
expand the number of seats on the Supreme Court to get rid of its
conservative majority, an idea some Democrats wanted to revisit
during Biden’s presidency.
Respecting the courts a foundation of the rule of law
But the anti-judicial rhetoric has not for decades reached the pitch
that it's at now, experts say. One reason for that is that Trump has
issued more orders than any other new president. Many of them rely
on novel legal theories about presidential power that go against
longstanding judicial precedent or have never been tested in court.
Anne Marie Slaughter, a former State Department official in the
Obama administration, compared judges to referees in sports who
enforce the rules. She said the U.S. has long advocated for the
importance of the rule of law in young democracies and helped set up
legal systems in countries ranging from India to South Africa to
ensure they stayed free.
“At this point, I think many of our allies and peer countries are
deeply worried and essentially no longer see us as a beacon of
democracy and the rule of law,” Slaughter said.
Rafal Pankowski, a Polish activist, recalled mass protests that
followed new requirements that country's populist Law and Justice
party placed on judges in 2019. They also drew sanctions from the
European Union for interfering with judicial independence.
Those demonstrations, Pankowski said, contributed to the party
losing power in the following elections.
“Over time, it became difficult for people to follow technicalities
of the legislation,” Pankowski said, “but the instinct to defend the
independence of the judiciary has been one of the main things behind
the democratic movement.”
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