The End is also a Beginning

Erik hits the nail on the head. As I once quipped, the good news for the Democrats is that opposition to authoritarianism no longer requires defending status-quo institutions.

I wish it were that simple. Both small-d and large-d democrats are still facing seemingly impossible choices. We have an overriding interest in preventing the complete subversion of republican democracy by Trump and his authoritarian allies. That implies defending institutions that remain, however minimally, impediments to despotism. It means desperately needing Republicans in the congress to break from Trump—to overcome narrow political self-interest, social pressure, and the fear of violence directed against them and their loved ones.

Nowhere is this dilemma better illustrated by the U.S. federal courts. The judiciary writ large has been, far and away, the most important impediment to Trump’s consolidation of authoritarian rule. But the Supreme Court is another matter. And here is where things get dicey.

No person or institution — other than Trump himself and perhaps Mitch McConnell — bears more responsibility for our slide into authoritarianism than the Roberts Court. The list of objectively anti-democratic decisions is both long and ignoble. Some of its greatest hits includes Citizens United, Shelby County, Rucho, and Trump v. United States. The so-called “liberal” justices have played their part as well, especially when it comes to the legalization of public corruption.

I don’t think it’s hyperbole to suggest that the Roberts Court’s jurisprudence has ipso facto destroyed the rule of law. Its superficial commitment to originalism has made it virtually impossible to know ex ante which precedents are binding. Its own decisions often make things worse, as they lack the kind of clear standards that lower courts need to consistently apply them.

This would be the case even if the Roberts Court’s embrace of originalism was in good faith. But, as readers of this blog know, the Court is only originalist when its conservative majority can cobble together a pseudo-historical basis for its decisions. Otherwise, it barely makes the pretense of engaging in originalist analysis.

Worse, the Court isn’t even ideological. It’s partisan. There is, by definition, no rule of law when the meaning of the U.S. Constitution and of federal statutes changes based simply on which political faction controls the relevant branches of government. There can be no rule of law when the Court manipulates technicalities to let illegal actions stand while refusing to establish ostensibly binding precedent.

So why are Democrats not running a scorched-earth campaign against the legitimacy of the Roberts Court? Because the Supreme Court does occasionally rule against some of Trump’s worst excesses. Democrats hold an extreme poor hand, and they think — not without reason — that helping to delegitimize the Supreme Court will rebound to Trump’s advantage.

I get this. I also know that institutionalism has failed. Those of us who argued that Trump was an existential threat to democracy, both at home and abroad, were right. More to the point, we were correct that the dangers posed by reactionary populism required pro-democracy governments to violate norms and bypass institutions. This was a hard thing to put down in writing — and I often found myself muddling the message — but it wasn’t hard to grasp.

We paid attention to what Trump did in the last six months of his first term. We saw elites and intellectuals mock those who warned about what was coming. We lived through the attempted coup. We watched Republican officials — ones who were lucky to escape with their lives — vote against impeachment and refuse to convict Trump. We saw Trump world regroup and begin to plan. And we read their writings and listened to their speeches as they told us exactly what they would do.

Biden liked to compare himself to FDR, but he lacked Roosevelt’s willingness to push against norms and institutional constraints. He should have removed Garland the moment it became clear that the Attorney General was not making the prosecution of Trump his single most important priority. Biden should have told the Supreme Court to shove it when it made ridiculous, indefensible rulings against his administration.

But Biden embraced institutionalism over decisionism. We forgot the lesson of the interwar period: that it is not immoral to suspend the rules in order to stop fascism — and that the consequences of failing to do so are catastrophic, because authoritarians do not care about norms and precedents and reciprocity.

And now we are ruled by a tyrant and his enablers. Hundreds of thousands of people have died. Innocent people have been tossed into gulags. The state is being stripped and sold to would-be oligarchs. The government is compromised by white nationalists and Putin sympathizers. The U.S. has been irrevocably weakened. Donald Trump, Stephen Miller, J.D. Vance, Pam Bondi, and the rest have only just gotten started. One of their goals: a surveillance state worthy of China or Russia.

I do not know what short-term tactics will work best. Democratic elites may very well be correct: that their best shot is to run a “normal” campaign focused on the pain that Trump inflicts on low-information and semi-engaged voters, get control of one or both chambers, and then use the power that affords them to wound Trump as much as possible.

But even if that works, it only kicks the can down the road. Democrats cannot, and will not, win every national election. The moment Trump retook control of the GOP was the moment U.S. democracy died. A two-party democracy cannot survive unless both of its major parties are committed to electoral accountability and the routine transfer of power.

As I wrote over on Bluesky, the Republic as we knew it is over. We are living through a culmination of an eighty-year movement to undo the New Deal’s reconstruction of the United States as a modern state, a sixty-year movement to reverse the Second Reconstruction, and a fifty-year movement to undo post-Watergate reforms. We cannot go back to the status quo ante. We cannot restore a democratic republic with duct-tape and twine.

That knowledge is terrifying, but it is also liberating. It shifts our strategic attention away from the realm of “the possible” and of “what message will win the next election.” Because I fear that no legislative fix will be enough, including expanding the Supreme Court.

We need to do what is currently impossible. For example, we need to amend the U.S. Constitution. The sooner we recognize this, the better. Because even if it succeeds, it will take extraordinary circumstances. There is no tradeoff between, on the one hand, pushing for “No King,” “No Corruption,” and “No Taxation without Representation” (voting rights) amendments and, on the other, running against Trump in 2026 and 2028. Trump’s economic policies are a symptom of his corruption and authoritarianism. Voters will not make that connection on their own. It must be hammered over and over again, for years if necessary. And we need to prepare peoople for MAGA’s subversion of future elections; institutional trust is worthless if those institutions are despotic.

I know this isn’t good enough. But it’s the best that I’ve got right now.