The ‘greatest threat’ to rule of law in decades. That’s how lawyers, judges see Trump
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- A survey finds deep concern about presidential overreach, persecution of enemies and other unchecked abuses of power.
- The poll underscores the stakes in November when the integrity of the legal system will be on the line.
Sometimes it seems as though the only thing that stands between a functioning democracy and a full-on Trump autocracy is a thin, black-robed line.
Although the Supreme Court, in general, and conservative appellate courts, in particular, have bowed and granted President Trump permission to do pretty much anything he wants, they haven’t thoroughly capitulated to his endless grasping for ever more power. (The way invertebrate congressional Republicans have.)
At the lower-court level, judges have repeatedly ruled in ways intended to check Trump, most notably when it comes to violating civil and constitutional rights in pursuit of his indiscriminate immigration dragnet.
The tendency to slow-walk his administration’s response to those rulings — and ignore others that Trump thinks he can safely snub — only contribute to the perception of presidential lawlessness and a sense that our judicial system is being strained to something approaching a breaking point.
Go ahead, if you’d like, and dismiss those concerns as just so much overwrought hand-wringing, or the mindless anti-Trump blathering of your friendly political columnist. A new survey of legal experts — including federal judges, top-tier lawyers and scores of professors from some of the country’s leading law schools — finds widespread concern about the brittle state of our legal system.
And it’s not just the fears of a lot of shaggy-thinking liberals.
Tina Peters deserved to go to jail but not for nine years, a panel of judges decreed, ordering her resentencing. Jared Polis then stepped in and substituted his own judgment. It was the height of arrogance.
“The nation is strong as is its commitment to the rule of law,” said one appellate judge, a Republican appointee. “The current president presents the greatest threat in decades.”
The survey was conducted by Bright Line Watch, a nonpartisan academic group that monitors the health and resilience of American democracy, in conjunction with the Safeguarding Democracy Project at UCLA’s School of Law.
Conducted between mid-February and early March, the poll anonymously surveyed 21 federal judges, 113 lawyers, 193 law professors, 652 political scientists and a nationally representative sample of 2,750 Americans.
What leapt out to UCLA’s Rick Hasen, director of the Safeguarding Democracy Project, was that “across the ideological spectrum and across judges, lawyers and law professors, there was considerable agreement that the rule of law in the U.S. is under tremendous stress.” That consensus, he said, suggests “a real risk to democracy.”
Most legal experts agreed that Trump is using executive power excessively, with a majority doubting the conservative-leaning Supreme Court would handle cases involving the Trump administration impartially. The experts also expressed concern about politicized law enforcement — Trump seeking to persecute his perceived enemies — executive branch overreach, and the failure of Congress or the Supreme Court to do more to rein in the rogue president.
Eight in 10 of those surveyed said federal officials fail to comply with court orders somewhat or very often, and nearly 9 in 10 said political appointees in Trump’s Justice Department mislead federal judges somewhat or very often.
Talk about contempt of court — not to mention our vital system of checks and balances.
The Trump administration in its first year has claimed sweeping executive power and tested U.S. laws. Federal judges warn that American jurisprudence and democracy are under threat.
There was, unsurprisingly, a split among conservatives and liberals who took part in the survey. (The study defined legal conservatives as those saying the Supreme Court should base rulings on its understanding of what the Constitution meant as originally written. Liberals, who made up most of the respondents, were defined as those saying the court should base its rulings on what the Constitution means in current times.)
Conservatives, for instance, were more likely than liberals to see former President Biden as a greater threat to the rule of law than Trump. Liberals were more likely than conservatives to see evidence of Trump politicizing the Justice Department.
There were also differences between legal experts — those most intimately involved in the judicial system — and the public at large. The experts were more concerned about Trump’s excesses and threats to the rule of law, which, Hasen said, stands to reason.
The legal system is not something most people encounter daily in the same way they do, say, gasoline prices or the cost of groceries. “Yet,” Hasen said, “it’s one of these background things that really matters.”
Why?
Hasen put it this way: “Imagine that a person had a dispute with their neighbor and it ended up in small claims court before a judge and the judge made the decision not based on the merits of the case but based on whether he was friends with one of the parties, or didn’t like people who were similar to one of the parties.”
Now imagine that kind of corrupted, perverted system of justice writ large.
If, for instance, “people know that the government can successfully seek retribution from people who criticize it, people will be less likely to criticize the government,” Hasen said, leaving the country worse off by muzzling those who would hold their elected leaders to account.
Or if, say, rioters overran the U.S. Capitol and tried to steal an election and, instead of being punished, received cash payouts from the federal government, what incentive would there be to follow the law?
A constitutional provision allowing Congress to determine its makeup has some worried a Democratic victory could be nullified. Skepticism abounds, but Trump has repeatedly breached long-standing norms.
Happily — and who couldn’t use a bit of good cheer right about now — all is not lost.
People “can demand that their elected representatives take steps to assure that the rule of law will be followed,” Hasen said, and can insist “that the government [not] play favorites or seek retribution against perceived enemies.”
That’s the power people have, come election time. That’s why voting matters.
There are lots of things riding on the outcome in November, not least the sanctity and integrity of our legal system.
Bear that in mind when you cast your ballot.
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Ideas expressed in the piece
- Legal experts across the ideological spectrum express significant concern that Trump’s presidency represents the greatest threat to the rule of law in decades, with survey data showing widespread agreement among federal judges, lawyers, and law professors about the tremendous stress on the U.S. legal system[1][4].
- The administration has repeatedly defied court orders, including refusing to turn around deportation flights carrying alleged Venezuelan gang members and ignoring judicial mandates regarding 48-hour notice requirements for deportations, demonstrating a pattern of presidential lawlessness[1][3].
- Political appointees in the Justice Department routinely mislead federal judges, while the administration has issued executive orders specifically targeting law firms by name, suspending their security clearances, barring access to government buildings, and terminating contracts due to their prior representation of clients opposed to Trump[1].
- Judges report receiving violent threats and intimidation tactics—including death threats and unsolicited pizzas sent to their homes—following adverse rulings against the administration, with federal marshal services overwhelmed by a 78% increase in threats against judges over four years[3].
- The administration has politicized the judiciary by attacking individual judges who rule against it, calling them names and accusing them of “hating America” or suffering from “sick ideology,” thereby undermining judicial independence and the separation of powers[1][3].
Different views on the topic
- Some conservative legal scholars argue that the Biden administration posed significant threats to the rule of law through serious breaches of presidential power, particularly regarding COVID-19 vaccine promotion efforts, with conservative courts allegedly using technical maneuvers to shield Biden from judicial examination[2].
- Certain legal conservatives contend that Democratic officials have engaged in judge shopping to secure favorable rulings, as seen in lawsuits filed by state attorneys general challenging federal communications with social media platforms about national security concerns, creating equivalent threats to judicial independence[2].
- The Hoover Institution analysis suggests that judicial avoidance of cases on the merits regarding alleged misconduct in the Biden administration represents a pattern where courts refuse to address serious allegations of major improprieties, thereby encouraging political actors in both parties to skirt the law[2].
- A segment of legal conservatives maintains that former President Biden presents a greater threat to the rule of law than Trump, pointing to administrative overreach and executive actions that allegedly circumvented proper legal channels during the previous administration[2].
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