Are the Courts Really Powerless?

According to one expert, they might still check a defiant president.

Thurgood Marshall Courthouse, New York. Credit: Bumble Dee / Shutterstock

Last time, we saw how the guardrails that traditionally acted to curb the president’s abuse of power had become obsolete by the start of Donald Trump’s second term. The institutionalists who enforced some minimal degree of executive forbearance during his first administration are gone. Meanwhile, the Supreme Court has granted Trump virtual immunity for any crimes he commits. The disappearance of the old constraints explains why he has managed to impose authoritarianism as quickly as he has.

Among the telltale signs of this new regime is the open defiance of the federal courts. Since the old checks on executive power have vanished, the problem will only get worse from here—so much so, I wrote in my last piece, that “it is not hard to foresee a day when court orders amount to little more than scraps of paper deposited in the White House suggestion box.”

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The ensuing conflict between state and federal law enforcement would trigger a constitutional crisis, albeit one that would be quickly and decisively resolved in the latter’s favor.

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I am hardly the only commentator to voice such concerns. But one expert believes the problem to be overstated. David L. Noll is a professor of law at Rutgers University and the author, with Jon D. Michaels, of Vigilante Nation: How State-Sponsored Terror Threatens Our Democracy (Simon & Schuster, 2024). Noll is hardly some Pollyanna when it comes to Trump and his authoritarian project. But as he mentioned to me in a recent Bluesky exchange, he does believe the courts “have a lot of tools at their disposal to impose pain on executive officials.” In a separate thread last week, he spelled out what those tools are. In doing so, he was building on an article he wrote for Democracy Docket in March.

I find Noll’s input especially valuable not only due to his subject matter expertise but also because he offers the most concrete explanation I have seen of the specific means by which the judiciary might ensure executive compliance. I will try to summarize his argument below but have included the full thread for good measure. Those looking for a deeper dive into the legal basis for the following scenarios can refer to his earlier piece in Democracy Docket.

Let us say an executive branch official repeatedly defies a court ruling. What happens then? Once all other remedies have failed, the judge can order the official’s arrest for contempt. Being that the judge cannot go and personally cuff the contemnor, the question arises as to who would be responsible for detaining them. Noll takes us through the steps:

• Step one: The primary agency responsible for arresting a contemnor is the U.S. Marshals Service. The problem, of course, is that its boss, Attorney General Pam Bondi, also happens to serve as Groom of the King’s Stool. But as Noll explains, it would only take a single marshal to fulfill their oath of office and carry out the arrest.

• Step two: If Trump and his minions are able to browbeat the entire Marshals Service into defying the order, the judge can designate an outside law enforcement officer to detain the contemnor. Most likely, that officer would come from the District of Columbia or Maryland police.

Noll is fully aware of the potential pitfalls inherent in these scenarios and we will consider his thoughts on the issue in due course. For now, let us start with step one. The fact that it only requires a single federal marshal to step up and execute the arrest warrant creates a real possibility that it will be carried out. On the other hand, the marshal can expect immediate termination for their insolence while the contemnor will be released within the hour.

With that avenue forestalled, the judge would initiate step two, which is to appoint a state or D.C. law enforcement officer to make the arrest. This presents a trickier problem from the administration’s standpoint since the attorney general cannot simply fire the officer in question. By implementing the order, however, the officer will have made an enemy of the president.

The Role of External Support

The ensuing conflict between state and federal law enforcement would trigger a constitutional crisis, albeit one that would be quickly and decisively resolved in the latter’s favor. Absent robust support from the outside—an important matter we will consider in a moment—there is no way a D.C. police officer or even the entire district police department could withstand an army of federal agents acting at the behest of a determined president. Hence, relying on state or D.C. law enforcement is not a sustainable solution, at least on its own.

But as Noll points out, intervention from the outside could tip the balance the other way:

The winner of the showdown depends on the reaction from Congress, how many people take to the streets to defend the rule of law, how the dispute is covered in the press, the reactions from markets, and so on. But it’s a mistake to think that as a legal matter the courts will just run out of options. They may be outgunned … but the law as it now exists empowers them to prolong the fight indefinitely [italics included in the original].

I agree that the outcome would depend on external actors. But which external actors would be best positioned to influence the course of events? As Trump’s humiliating climbdown on the tariff issue showed last week, the potential for a market panic really does have the power to make him blink. But when it comes to forcing executive compliance with a court decision, any role the markets could play is probably limited to rulings that directly impinge on economic policy. Violating an order to release an unlawfully detained journalist is unlikely to cause the sort of market turmoil that would induce a retreat by the president.

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The rule of law as we knew it is dead and the only thing that can bring it back is massive civil resistance.

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As for Congress and the press, it is doubtful that they can exert the same amount of influence as they once did. That is not to say they are irrelevant; there is a reason autocrats everywhere seek to dominate the legislature and the media. Still, they are probably less important than they used to be.

In a functioning democracy, top officeholders tend to constantly heed shifts in their support from civil society and the public at large. But the U.S. is no longer a democracy; it is a competitive authoritarian regime. While authoritarian leaders cannot remain oblivious to public sentiment, they need not respond to minute-by-minute changes in the political temperature. That is the whole point of being an authoritarian.

The other factor Noll highlights is indeed critical in my view. If there is one thing that can force Trump’s hand, it is large-scale, nonviolent civil resistance. In the event of an especially egregious instance of judicial defiance, mass protests and economic boycotts could conceivably impel the administration to change course. But civil resistance is not something the courts can activate at will; it requires concerted mobilization from the outside.

In short, the courts cannot save us; it is we who must save the courts.

That brings us to Noll’s final point, which is that

it’s a mistake to think that as a legal matter the courts will just run out of options. They may be outgunned…but the law as it now exists empowers them to prolong the fight indefinitely [italics included in the original].

This gets to the heart of our disagreement. In a way, Noll and I are talking past each other. Noll is primarily concerned with the legal options available to the courts as set forth in the Constitution, judicial precedent, and statutory law. Conversely, I am focused on their actual powers under the circumstances—the circumstances being authoritarianism.

Now that the U.S. has become a competitive authoritarian regime, traditional modes of political influence are less effective than they were before. Campaigning, fundraising, lobbying, and legislative politics will not have the traction that they used to. Elections on their own will not be able to bring about the removal of (Republican) incumbents. The judiciary’s authority will also be curtailed, a process which is happening before our eyes.

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The courts cannot save us; it is we who must save the courts.

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On paper, the law has not changed. A federal judge can still order the arrest of a contemnor and even “prolong the fight indefinitely,” as Noll puts it. In practice, however, the law matters less than it did before.

This is a point that I believe Noll has overlooked. The laws on the books might not have changed but their authority certainly has. The formal legal prerogatives invested in the judiciary no longer translate into the same real world consequences that they did under democracy. A judge can order the arrest of a contemnor. The arrest might even happen—once. But it has little prospect as a lasting remedy for executive defiance.

In sum, I do not believe, as Noll does, that the law as it is now empowers a judge “to prolong the fight indefinitely.” The law as it was then did, but not the law as it is now. The rule of law as we knew it is dead and the only thing that can bring it back is massive civil resistance. Fortunately, the conditions for such resistance are ripe and will become evermore so as Trump’s blundering and overzealous bid for autocracy proceeds. It is this subject to which we turn next time.