According to scholars, President Trump's fierce disputes with federal courts are unusually aggressive compared to similar disputes in other countries. Unlike the leader who destroyed or reconstructed the courts, Trump behaves as if the judge was already too weak to constrain his power.
“To be honest with God, I've never seen anything like that,” said Stephen Levitsky, a Harvard political scientist and co-author of “How Democracy Dies” and “Common Authoritarianism.”
“We see these comparative cases of the 21st century, like Hungary and Poland and Turkey. And in many ways, this is even worse,” he said. “These first two months have been much more positively authoritarian than most other comparable cases I know about democratic backslides.”
He said there are many examples of authoritarian leaders who constrain the power of justice by packing court-compliant judges or by changing the laws that empower them. However, it is very rare for leaders to simply assert their authority to directly ignore or override a court order. This is especially true right after he took office.
In Turkey, President Recept Tayp Erdogan cleansed thousands of judges from the judiciary as part of a broader effort to integrate power in his own hands. But it required decades of effort and multiple constitutional changes, Levitsky said. It was only completely successful after the failed 2016 coup provided political justification for the purge.
In Hungary, Prime Minister Victor Orban packed friendly judges into the Constitutional Court to retire hundreds of people, but used constitutional amendments and administrative changes to force it for years.
Over the weekend, the Trump administration ignored a federal judge's order not to deport a group of Venezuelan men, and later tried to retrospectively justify its actions with arguments far from settled laws and normal practices, which legal experts say are flirty.
Advocates of Trump administration's policy claim that judges have too much power over the administrative department.
On Tuesday, Trump further raised his interests by urging a rare responsibilities from Secretary John G. Roberts for publicly seeking the judge's bullet each for the order.
“For over two centuries, it has been established that each is not an appropriate response to differences in opinion over a judicial decision. For that purpose, there is a normal appeal review process.”
Levitsky said he is struggling to find precedents of what the Trump administration is doing.
“The enthusiasm for these people to be increasingly open and engaged in authoritarian behavior is different from almost everything I've seen: Erdogan, Chavez, Orban – they hid it,” Levitsky said.
Permission to ask questions
The dispute between the Trump administration in the U.S. District Court in Washington and Judge James E. Boasberg is nominally about deportation. However, legal experts say it was a showdown over whether judges could constrain administrative agencies.
“Judges are not permitted to control the legitimate power of executives,” declared last month. “I don't care what the judges think, I don't care what the left thinks,” Trump's border emperor Tom Homan appeared on Fox & Friends this week.
On Tuesday, Trump wrote on social media on social media that Judge Boasberg is a “radical madman” and that “perforated each” should be “perforated each.”
White House spokesman Karoline Leavitt said on social media that a “single judge” could not order the movement of a plane road for people “physically exiled from the soil of the United States.”
(In fact, US courts can order the return of unfairly deported aliens.)
The Trump administration's tactics are very unusual, said Andrew O'Donoffhe, a non-resident scholar at the Carnegie Fund for International Peace, who studies conflicts between courts and elected leaders around the world. The fight over court power usually tended to be an extension of political division.
In Israel, for example, the right-wing government led by Benjamin Netanyahu has sought to curb the power of the courts that have historically been associated with the country's left. In Türkiye, the courts had ties to the secular state and clashed with President Recept Tayp Erdogan's religious populist agenda.
But Trump and the federal courts are not equally ideological enemies. Federal judges hold a variety of views, but the judiciary has become more conservative in recent decades. And the Supreme Court, which has a conservative majority, has given many important victories on political rights in recent years, including granting a president that wipes out immunity from criminal prosecution.
Restraint code, turned his head over
The courts don't have their own military or important police. However, leaders usually follow the judge's orders.
Voters usually don't reward elected leaders for violating norms, disrupting a stable constitutional order, or taking essentially illegal actions, said Aziz Fuku, a law professor at the University of Chicago and co-author of the book How to Save Constitutional Democracy.
But that calculus may not apply to Trump. Trump is based on his delighted and disregarded his political appeal to sacred norms. Refusing to accept court authorities might actually appeal to the president's base, Huq said he would sue it if they take it as evidence of strength rather than lawlessness.
Past presidents are also more constrained by elites within political institutions.
“Richard Nixon had to care not only about public opinion, but Walter Cronkite, the Republican and Democrat leaders,” Levitsky said. “The constraints were difficult to measure, but I think they are very realistic in the 20th century.”
Today, traditional gatekeepers are very weak. Especially when leaders like Trump benefit politically from choosing to fight the facility.
Protecting the courts from hostile leaders
There are proven ways that courts can successfully defend their authority against leadership violations or attacks. The most effective source of protection is that when courts can derive support from other government officials outside the judiciary, “the muscles can be placed behind the court's decision,” O'Donohew said.
When Brazilian President Jia Bolsonaro tried to ignore the court's decision on lockdowns and public health measures during the pandemic, the local mayor and governor followed the court's ruling anyway.
However, the tactics can be more difficult to use when the order is directly related to a federal agency. Local leaders cannot force the Department of Homeland Security to halt deportation flights or comply with a court order that restores USAID funds.
Political pressure to protect court power is also effective, even when leaders' own members are pushing in the opposite direction.
In Israel, for example, supporters of Prime Minister Benjamin Netanyahu himself strongly supported the proposed law that significantly restricted court powers to constrain political leaders. However, the wider public mobilized fierce opposition to reform.
In 2023, thousands of Israelis took them to the streets almost every Saturday in a massive protest over a judicial overhaul. Influential sectors of society, including military reserves, business leaders, trade unionists and senior politicians, also publicly opposed the law. Their actions closed businesses, traffic and even Benjurion International Airport. In the end, Netanyahu was forced to stop most of the planned changes.
However, it is difficult to form and maintain a massive protest movement. So far, there are few indications that a similar movement is being formed in the US.
Political pressure can also arise from within Trump's political coalition.
“Even the 12 Republicans in Congress have the ability to stand up to Trump, this would be a very different ball game,” Levitsky said. “Trump, Musk and Stephen Miller couldn't do it on this alone. They're doing it with full cooperation from the majority party in Congress.”
“We're in a bad place,” he said.
