By Marc Elias
It’s done.
With little fanfare Congress has counted the votes from the Electoral College and certified Donald Trump the next president of the United States. Though his tenure won’t formally begin until noon on Jan. 20, he has already begun acting as the de facto president.
This follows Republicans taking control of both houses of Congress. Though the margin is slim, the fact is that for the next two years Republicans will control all three of the elected branches of our federal government.
If you are looking for the guardrails on MAGA extremism, it does not reside in government institutions or norms. It will not be found in legacy media newsrooms where both-sides journalism is the order of the day. Nor will you find any courage in the boardrooms of large corporations as they bow and scrape before Trump.
That leaves only the courts. If there is a guardrail protecting democracy — and that is very much an if — it exists in the black robes of our state and federal judiciary.
Courts have three essential functions.
First, courts adjudicate disputes between parties. If two parties to a contract have a dispute, the court hears the evidence, applies the law and renders a verdict. Sometimes it does this while overseeing a jury that makes the ultimate decision.
Second, in many cases, it is the job of courts to decide what ambiguous or uncertain laws mean. Last year, the Supreme Court considered a criminal law that makes it a crime to “obstruct, influence, or impede any official proceeding.” One question the court had to decide is what qualifies as an “official proceeding.”
Finally, in some cases, courts need to decide whether the U.S. Constitution prohibits a particular government action or invalidates rule, regulation or statute. These are the cases that garner the most attention and often involve the highest stakes.
If democracy is to survive the next four years, the courts will need to perform each of these functions.
We must act like the courts will uphold their oaths and protect democracy.
Donald Trump has made clear that he will use litigation as a tool to harass, intimidate and punish his political opponents. Much has been made of Disney’s decision to settle Trump’s defamation case against ABC News. At one level it reflected corporate cowardice. At another, it was an example of a court unwilling to dismiss a lawsuit aimed at inflicting damage on the media.
Trump will soon control not only his own legal team, but also lawyers throughout the federal government. He has talked openly about using the Department of Justice to go after his enemies. In each of those lawsuits — civil and criminal — there will be a judge who will have to decide whether a case should go forward or be dismissed. Judges are accustomed to defer to the DOJ’s professionalism and good faith. However, in cases involving Trump’s opponents, judges must start from a posture of skepticism and be willing to dismiss politically motivated cases at an early stage.
Trump has also shown contempt for the law. He has suggested that he will ignore restrictions that he does not agree with — including those governing the use of the military and spending of appropriated funds. Judges must be ready to block illegal actions by the executive branch. They must interpret existing federal law in ways that promote democracy and checks and balances.
Finally, and most importantly, courts must uphold the Constitution to protect against government overreach. Our Constitution was born out of a revolution against a tyrannical king. It was intended to prevent the concentration of power in the hands of any one person. It has been amended to expand the rights of individuals to live with dignity and free of government interference.
Too often judges fall back to legal theories of no practical import for democracy. Textualism, originalism and living constitutionalism are irrelevant labels to everyday Americans. Courts must ensure the Constitution remains a broad shield protecting individual liberty and not become democracy’s suicide pact.
Sitting here today, I cannot promise that our courts are up to this task. Indeed, there are good reasons to think they will fall short. Donald Trump is hoping they will. We cannot make it easier for him by expecting failure. Instead, we must insist on success. We must act like the courts will uphold their oaths and protect democracy. Not because we are naïve, but because it is our best hope for a guardrail to hold.
Courts Are the Last Guardrail
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