The United States currently has an elected president and an unelected billionaire who are flagrantly breaking its laws. As members of Congress wrongly insist they have no leverage to do anything about this, we who care about democracy are pleading for others to help. Is it consistent with democracy to direct these pleas to the federal judiciary—a branch of government staffed by unelected judges?
Yes, of course. With reservations.
The appropriate role for national courts in our democracy is to enforce the laws passed by the national legislature. Voting rights laws, anticorruption laws, civil rights laws—none of these do anything on their own if there’s no one to enforce them. Enforcement can take many forms, from boycotts and freedom rides to temporary restraining orders. Congress has given federal courts a menu of powerful options for enforcing its laws against powerful figures who would defy them. We should, of course, make use of this menu to stop illegal purges, budget freezes, attacks on birthright citizenship, and much else.
At the same time, the menu that federal courts bring to the table also comes with significant drawbacks. The most important is that depending on courts risks ignoring other, perhaps more effective options: there are many ways of enforcing federal laws that have nothing to do with judges. Strikes and work stoppages stop lawless governments as readily as they stop lawless bosses. Acts of civil disobedience force bystanders to evaluate the morality of standing by. Marches, rallies, art, and theater all construct strong communities out of otherwise isolated individuals.
In short, institutions that are accessible to all of us, not just to the lawyers among us—institutions that include unions and nonprofits, legislatures and states, political parties and places of worship, the press and universities, businesses and other countries—come with their own menus of options that are strong when we exercise them. We must not allow them to atrophy.
A second shortcoming is that while the options on the judicial menu are indeed powerful, they may not be powerful enough. After all, federal judges are supervised by a Supreme Court whose members may be personally in the tank for the president and billionaire. And not even a judicial order is self-enforcing, particularly against a president who can issue his own orders in response.
A third downside to relying on the judicial menu is that federal courts helped get us into this mess—and they can make things much worse by ratifying the lawbreaking. Few federal judges believe it is actually their democratic responsibility to enforce the laws passed by Congress; most of them believe they can disregard any law whose constitutionality they disagree with. The reason we don’t have fully functioning voting rights laws, anticorruption laws, and civil rights laws isn’t because of anything that has happened so far this year, but because federal judges have spent the last one hundred and fifty years striking these federal laws down. These judges’ claim to interpretive supremacy over Congress has produced a president who can claim to be immune from criminal laws, a billionaire who can claim to have paid for the president’s election, an extremely vulnerable civil service, an incapacitated voting rights act, and an arsenal of precedents that has invited would-be dictators to claim more than kingly power.
When the president barks that he has the power to defy federal laws in the name of wild theories about the meaning of the Constitution, he is providing a fun-house mirror of an antidemocratic example already set by the Supreme Court.
All this is to say that federal courts should absolutely enforce the federal laws that the president and the billionaire are violating. It is wrong for any person in a democracy, especially one of its leaders, to claim to be above the law. But the options available to federal courts are simultaneously too limited, weak, and dangerous for us to rely on them to the exclusion of everything else.
In addition to filing suit, American democrats must reacquaint ourselves with the practice of organizing others, persuading them, and wielding the disruptive power that comes from building institutions premised on political equality instead of legal hierarchy. Democracy in America did not begin with a victory in court—and will require far more than one to save it. We need all of us.
