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Responding to the Trump administration, at least two federal judges have recently issued rulings attempting to defend the international aid framework [ [link removed] ] from being arbitrarily defunded.
These are important cases, which are likely unfortunately doomed. Why?
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Too few Americans pay any attention to history or law, let alone legal history or its implications for whatever passes for democracy in America. That overlooked set of issues helps explain why relying on the courts to defend democracy [ [link removed] ] is something between foolish and hopeless.
The genius of our constitutional design
Beyond the Bill of Rights, and the delineation of specific rights that would be free from government dimension, the central genius animating the U.S. constitution was the separation of powers. The framers designed three independent branches of government with separate powers poised to check and balance each other.
Many observers recently have observed the Trump administration’s efforts to marginalize Congress, which the framers saw as the primary branch of government given its representation of the electorate.
Too few, however, have observed the institutional co-optation of the courts—not under the Trump administration, but over the 20 years preceding his first term in the White House. Beyond an object of history, this analysis also predicts how the Trump administration’s agenda will ultimately steamroll Washington, despite the efforts of advocates to slow it.
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A gift that keeps giving
25 years ago, the Supreme Court chose the president, disregarding both federal and state law to effectively decide a contested election. It was outrageous at the time, yet Democrats deferred to the rule of law with ultimately catastrophic consequences—not only for themselves and their party, but also the rest of humanity.
The arrival of George W. Bush to Washington in 2000 did not set off the earthquake that Trump‘s return did in 2025, but it set the stage for it in important ways that observers generally overlook.
Setting aside the illegitimate and illegal invasion of multiple countries based on laughably false pretenses, the creation of an unconstitutional mass surveillance regime that has managed to evade congressional and judicial scrutiny for a generation, and the decision to implement torture as a national security policy, the Bush administration left an even more enduring legacy: its judicial appointments, particular to the nation’s highest court.
At the time, Yale law professor Bruce Ackerman described the circularity [ [link removed] ] that undermined the court’s legitimacy: by choosing the president, the justices effectively chose their own successor, which the constitution was very careful not to allow.
Later events confirmed Ackerman’s concerns. After the Bush v. Gore decision installed him in office, President Bush appointed the next chief justice, John Roberts. Roberts continues to serve in the role, for which he had long been groomed as the personal protégé of his predecessor, William Rehnquist.
Today, the court has been skewed, not only by the legacy of Bush v. Gore and the right wing judicial appointments it enabled, but also the well-established chasm between the corporate political parties and their interest in championing their supposed ideals.
When Barack Obama was president, he nominated Merrick Garland to the Supreme Court. Republicans contrived disingenuous reasons [ [link removed] ] to avoid considering his nomination, before later violating [ [link removed] ] those reasons when it suited their own purposes.
Many Americans finally woke up [ [link removed] ] to the weaponization of a right wing judiciary when the Dobbs decision in 2022 overturned Roe v. Wade. But that reversal had been brewing for the last 50 years since Roe was decided, particularly over the last 20 since the court was co-opted and bent to the right by the Bush v. Gore decision.
A dilemma facing advocacy organizations
One of the advocacy organizations that I worked for before running for Congress is the world’s largest digital civil liberties organization. My role at the Electronic Frontier Foundation (EFF) involved creating a national grassroots network to extend the organization’s advocacy beyond courts and Congress to include state, legislatures and even local city councils.
One of the first things I did when getting there was raise a question internally about EFF’s historical reliance on impact litigation and federal courts to achieve its aims. By that point, one of its signature cases challenging the NSA mass surveillance regime had been languishing in federal court for years, waiting for a ruling from a federal judge who seemed disinclined to actually use the power of his office.
Whether a reflection of institutional judicial co-optation, or simply the personality of someone who maybe shouldn’t have had the role, the judge’s refusal to consider the case on the merits effectively deferred to the executive branch, allowing the continuation of the NSA’s program despite multiple legal challenges observing its unconstitutionality.
Watching a prolific advocacy organization hamstrung by its deference to the courts—even when judges were more or less unwilling to show up for work—revealed to me the limits of the rule of law.
Today
Years later, as advocates now rush to court to try to contain the Trump administration’s blitzkrieg [ [link removed] ] laying waste to institutions from the Department of Education to USAID, they may be poised to learn the same lesson.
On the one hand, multiple district courts have reached decisions limiting the administrations decisions, or at least delaying them. On the other hand, all roads lead to Rome, and judicial appeals to the Supreme Court, which has already publicly declared its fealty [ [link removed] ] to the new president.
Hoping for the Supreme Court to change its perspective and finally curtail executive power—when the Justices were chosen [ [link removed] ] based on their deference to executive power, and when many of them have also chosen to disregard any reasonable notion of judicial ethics [ [link removed] ]—is like wishing a tiger might change its stripes.
Many Americans presume that the rule of law will protect them and their interests in the face of arbitrary government. They hang their hopes for democracy in America on the courts, thinking them to be independent.
Imagining that the courts might defend democracy or the Constitution against the Trump administration, rather than the vision promoted by the new president (or the president himself) requires ignoring reality and forgetting history.
I fear they will eventually be forced to learn the same lesson that I did. Our courts were seized by the right wing a generation ago. It may have taken a generation for the impact of Bush v. Gore to reveal itself to the public, but it set the stage for the rise of Trump by ending the era of judicial independence.
A constitutional coup doesn’t require subverting the executive branch. That’s simply when it becomes impossible to ignore. The constitutional coup happened 25 years ago.
Paid subscribers can access a series of long-form articles that I wrote explaining the impacts of the Bush v. Gore decision, culminating in a proposal for court reform that the Biden administration adopted 15 years later...

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