What The Hell America!

Donald Trump’s attacks on the courts lack recent precedent in the United States, but they follow a clear pattern seen in backsliding democracies around the world. In many countries, when political leaders challenge the courts, the end result isn’t merely a win in a single policy dispute. These attacks have a deeper, more destructive effect: They systematically weaken the courts as a check on the executive’s power—opening the door for governments to abuse that power to target opponents and endanger democracy.

This fight takes place both inside and, importantly, outside the courtroom, in the arena of the public’s opinion. Even though citizens generally agree that governments should obey court orders, several would-be authoritarians—such as those in Turkey, Mexico, and El Salvador—have managed to defy the courts, while keeping the public on their side. The interesting question is not why these leaders seek to turn public opinion against the judiciary—that much is obvious—but how they do it.

The pattern I have seen as I’ve studied democratic backsliding globally is what I call “court-baiting.” To undermine public support for the judiciary, political leaders adopt policies that are popular but very likely illegal. Many courts then rule against the executive, and the executive uses their unpopular decision to condemn the judiciary writ large. Court-baiting is a potent strategy because it puts judges in a lose-lose position: Either strike down a popular policy and face public backlash, or allow the policy and erode legal limits on executive power. Such tactics are tailor-made to undermine judges’ legitimacy, because elected leaders can claim to represent the “will of the people”—and thus democracy—when the courts block popular policies. Even when losing, these would-be authoritarians win.

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This strategy of court-baiting is difficult to defend against because political leaders determined to weaken the courts hold a key strategic advantage. The executive branch sets the policy agenda, whereas the judiciary is a reactive institution. Presidents can thus choose favorable terrain on which to do battle with the judiciary, challenging the courts on policy issues that are popular with voters. In the United States today, by clashing with the judiciary on numerous cases involving immigration, the president is following precisely this court-baiting playbook.

To understand this dynamic, consider a textbook example from Turkey. When Turkey’s long-serving leader, Recep Tayyip Erdoğan, first rose to power in 2003, he initially faced powerful constraints from the judiciary. Whereas Erdoğan’s party was religiously conservative, Turkey’s courts were staunchly secular and issued dozens of decisions during Erdoğan’s first term to limit the government’s sway over historically secular state institutions.

To take down the judiciary, Erdoğan used the court-baiting playbook. He proposed a constitutional amendment perfectly designed to galvanize public support—and trigger a showdown with the judiciary. In Turkey, the courts had repeatedly upheld a ban that prevented Muslim women from wearing the Islamic headscarf at universities in the name of upholding the constitution’s strict commitment to secularism. This policy was exceedingly unpopular. Erdoğan’s constitutional amendment, passed in 2008, lifted that ban.

The public loved Erdoğan’s amendment. More than 75 percent of Turkish citizens supported repealing the headscarf ban, as did 93 percent of voters in Erdoğan’s party. Even better for Erdoğan, the headscarf issue resonated personally with many citizens. Roughly 70 percent of women in Turkey wore a headscarf at the time, and a significant minority of women—about one in five—said they would prefer to leave university rather than remove their headscarf.

Best of all, Erdoğan’s headscarf policy was well calibrated to cause a conflict with the courts. In previous rulings, Turkey’s judiciary had explicitly struck down laws permitting the headscarf as inconsistent with secularism and thus unconstitutional. Faced with a highly popular but questionably legal policy, Turkey’s Constitutional Court chose to go against public opinion. In a highly controversial 9–2 decision, the court ruled that Erdoğan’s constitutional amendment allowing headscarves at universities was itself unconstitutional, as it infringed on the bedrock, unamendable principles of Turkey’s secular constitution.

This deeply unpopular decision created a golden opportunity for Erdoğan to weaken the courts in the name of democracy. As one high-ranking Turkish judge told me in an interview, “The headscarf issue was a way for Erdoğan to become the victim and win the support of the people. It was so popular.” (As part of my research, I granted anonymity to all of the judges I spoke with in Turkey, because of the level of political repression there.) In response to the court’s ruling, Erdoğan argued that the judiciary was obstructing the “national will,” or milli irade in Turkish. Erdoğan proposed new constitutional changes in 2010—this time with provisions to increase the number of seats on the Constitutional Court and bolster government control over appointing and disciplining judges. This constitutional referendum passed with 58 percent of the vote.

This strategy of court-baiting is widespread across cases of democratic backsliding. Although the particular policies that leaders champion vary, presidents frequently antagonize the courts on national-security issues—a policy arena in which voters tend to support a stronger executive and weaker judiciary. That’s what played out in Mexico under former President Andrés Manuel López Obrador, when he sought to empower the military to fight drug cartels and take over various civilian responsibilities.

In 2022, López Obrador and his Morena party passed a law to hand control over Mexico’s civilian-run National Guard to the military. This policy had significant support because the Mexican public expressed higher levels of trust in the military than in the police on the issue of combatting the cartels. López Obrador further made the case that putting the National Guard in the military’s hands was necessary to skirt the corruption endemic to Mexico’s police.

Though popular, López Obrador’s policy was also almost certainly illegal. The civilian nature of the National Guard was explicitly enshrined in Mexico’s constitution. But because López Obrador and his party lacked the votes needed for a constitutional reform, they attempted to militarize the National Guard using ordinary legislation. Sure enough, Mexico’s Supreme Court ruled in 2023 that the president’s policy ran afoul of the constitution.

López Obrador’s response was to mobilize voters against the courts in the name of creating what he called a “true democracy.” In 2024, after winning a landslide election victory, López Obrador’s coalition passed constitutional changes to fire nearly 7,000 judges, including all of the justices on Mexico’s supreme court, and replace them with popularly elected ones. At the same time, López Obrador’s coalition renewed its push to bring the National Guard under military control—now with the supermajority needed for a constitutional amendment. With this strategy of court-baiting, Mexico’s leader leveraged popular policies to lambast judges for being out of touch with voters and ultimately secured the majorities needed to subdue the judiciary.

In the United States today, President Donald Trump’s administration is similarly baiting the courts. It is likely no accident that the Trump administration’s most high-profile conflicts with the courts involve his signature policy issue: immigration. Last month, FBI agents arrested a Wisconsin judge accused of helping a migrant evade federal custody, and the Supreme Court found that the administration broke the law by deporting Kilmar Abrego Garcia, an immigrant who had been living in Maryland, to El Salvador. Of the 233 lawsuits filed against the Trump administration so far, almost one in four—53 legal challenges in total—concern immigration and citizenship.

Why challenge the courts on immigration? Because immigration is Trump’s most popular issue. Immigration is thus the ideal policy arena for court-baiting—one in which Trump can put courts in the uncomfortable corner of blocking him on a popular campaign promise. As Trump himself posted on Truth Social in response to a Supreme Court ruling, perfectly articulating the logic of court-baiting, “I’m doing what I was elected to do, remove criminals from our Country, but the Courts don’t seem to want me to do that.”

Proof of the strategy’s effectiveness is that citizens are more likely to support defying judges’ decisions in cases about immigration. When asked in the abstract, a supermajority of 82 percent of U.S. adults think that the president “should obey federal court rulings even if he disagrees with them.” But when asked specifically about immigration, 40 percent of adults and 76 percent of Republicans agree that “Trump should keep deporting people despite a court order to stop.”

Certainly, not every legal move from the Trump administration reflects a calculated strategy. In the case of Abrego Garcia, who was deported against court orders to a prison in El Salvador, Trump-administration officials admitted that the deportation was an “administrative error.” Yet key officials, in particular Trump’s deputy chief of staff, Stephen Miller, have been strategizing for years about how to launch an immigration-policy blitz and push the boundaries of executive power.

By emphasizing the popularity of unlawful policies, Trump administration officials have followed the court-baiting playbook. When asked about a Supreme Court decision that found that Abrego Garcia had been illegally deported, Miller argued that the president’s policy is that “foreign terrorists that are here illegally get expelled from the country.” That policy, Miller stated, is a “90–10 issue,” referring to hypothetical percentages to suggest that an overwhelming majority of Americans would support the president’s actions. Other members of Trump’s administration have similarly invoked security concerns to justify defying court orders on immigration. The president’s top border official described Abrego Garcia as a “designated terrorist.” The administration’s gambit, in brief, is that immigration is a winning issue for challenging the courts.

How, then, can the judiciary and its defenders respond to court-baiting? The first lesson from other democracies is that courts themselves are limited in their capacity to shape public opinion—and therefore depend on allies outside the judiciary. Whereas presidents can dominate the news cycle with media appearances and policy announcements, judges have fewer and more bounded avenues for reaching public audiences. In the United States, when Chief Justice John Roberts issued a public statement rebuking Trump’s calls to impeach judges, his announcement stood out as rare. Rather than making the case themselves, judges rely on external allies, such as civil-society leaders and elected officials, who can communicate with citizens about the value of upholding legal constraints on the executive.

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A second lesson is that the judiciary’s defenders can combat court-baiting by reframing the executive’s policies to undercut their popular appeal. For instance, when surveys ask if Americans support deporting undocumented immigrants accused of violent crimes, U.S. adults say yes by an 81 percentage-point margin. Little wonder, then, that Trump administration officials are attempting to frame the wrongfully deported Abrego Garcia as a “terrorist.” But when U.S. adults are asked if they support deporting undocumented immigrants who have lived in the United States for more than 10 years, as is true of Abrego Garcia, Americans say no by a 37 percentage-point margin. In other words, to thwart court-baiting, an effective counterattack for the judiciary’s defenders is to reframe the executive’s policies to render them less palatable for voters.

Ultimately, however, constitutionalism means that society must accept an unpopular policy that respects constitutional limits over a popular policy that violates them. The very foundation of constitutionalism is that certain fundamental protections—whether for free speech or the separation of powers—must be beyond the reach of popular majorities. There will almost always be some policy that is popular but unconstitutional.

Perhaps the most important lesson from other democracies is that when politicians successfully bait the courts on a popular issue, the resulting erosion of checks and balances spills over into other domains, enabling the executive to wield power in much more unpopular ways. Turkey provides a sobering example. Turkey’s leader initially weakened the courts in the name of passing popular policies, but he then abused his expanded power to clamp down on universities, erode the independence of the central bank, and imprison civil-society leaders, journalists, and politicians. In the United States, if Trump is able to weaken the judiciary by baiting the courts on immigration cases today, would he stop there? The experiences of other democracies offer a warning: Court-baiting starts by expanding executive power on a popular issue, but it can end with an unconstrained executive who destroys the cherished institutions of a free society.