How to Prevent Trump From Defying the Courts

If President Donald Trump defies the courts by refusing to comply with their rulings, what will stop him? This question has suddenly become central to U.S. democracy, as federal judges have temporarily barred numerous administration actions, including ending birthright citizenship and granting Elon Musk’s team access to a Treasury Department payment system. Troublingly, Vice President J. D. Vance has repeatedly suggested that the executive should disobey the courts in certain cases, writing last weekend that “judges aren’t allowed to control the executive’s legitimate power.”

Conventional wisdom, dating back to Alexander Hamilton, is that independent courts should protect democracy; the judiciary, Hamilton argued, is an “excellent barrier to the encroachments and oppressions” of elected politicians. Yet Hamilton also observed that “from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches,” meaning the executive and Congress. Hamilton’s paradox is that courts are designed to restrain a powerful executive but lack a clear basis for their own power. When and how, then, do courts prevail over an executive who threatens to flout their rulings?

[Read: The Constitutional crisis is here]

As a political scientist, I have researched this question by interviewing high-ranking judges and lawyers in backsliding democracies, collecting original data in Turkey, Israel, and Brazil. The answer: When courts confront a powerful, noncompliant executive, three paths enable the judiciary to stop an executive power grab. Each path musters support for the courts from a distinct outside source: intrastate actors such as state governors and Congress, societal mobilization, or the armed forces. The first path is most effective; the second is costly and challenging to organize; the last is itself dangerous to democracy.

To ensure that powerful leaders obey legal limits, the first and most reliable path is to mobilize intrastate allies—that is, actors within the federal, state, and local governments who can implement the court’s decision over political resistance from the executive. Take the example of Brazil under President Jair Bolsonaro. After Bolsonaro was elected, he clashed repeatedly with Brazil’s Supreme Federal Tribunal. Bolsonaro even threatened to close the court, impeach its justices, and refuse to comply with a judge’s rulings. But at the height of the coronavirus pandemic, when Bolsonaro “systematically sabotaged” pandemic control measures, the high court successfully constrained an antagonistic president.

Why? Brazil’s high court ruled that Bolsonaro could not override state and local public-health measures, and that decision mobilized governors and mayors as intrastate allies. These subnational government officials put muscle behind the court’s decision by acting to implement their own public-health policies against Bolsonaro’s wishes. What is more, the court benefited from support in Brazil’s Congress, which swiftly passed legislation to recognize the pandemic as an emergency.  

[Read: What the rioters in Brazil learned from Americans]

The federal system in the United States provides some opportunities for state and local actors to push for compliance with the courts. For instance, to override a court ruling to protect birthright citizenship, the Trump administration would need cooperation from officials nationwide, who could choose to side with the judiciary. But concerningly, many court decisions require active compliance from the Trump administration itself, on issues such as limiting the powers of Elon Musk’s team or placing thousands of federal employees on leave. The governors of California or Texas cannot easily use their state governments to restore the U.S. Agency for International Development. On many policy issues that the administration could lose on in court, a Republican-controlled Congress is unlikely to intervene.

When intrastate allies are absent, the second, more costly path to protecting judicial power becomes the next-best option: societal mobilization. This was apparent in Israel in 2023, after Benjamin Netanyahu’s government proposed a package of changes to curb the judiciary’s power. The effort to block this judicial overhaul mobilized support from the streets, economic power brokers, and state officials.

At the street level, every Saturday night, Israelis protested by the thousands to oppose the judicial overhaul. To apply economic pressure, trade unions, business leaders, and top Israeli economists spoke out about the economic damage of curbing judicial independence. Among state officials, military reservists threatened to refuse to serve, and Netanyahu’s own defense minister opposed the judicial changes. Ultimately, this mass societal mobilization forced Netanyahu to suspend the overhaul—and empowered the high court to strike down a law limiting the judiciary’s powers.

Mass societal mobilization, however, was costly for Israel’s economy and arguably its national security. The protests closed banks, shops, ports, and Israel’s Ben Gurion International Airport. The contentious fight over the judicial overhaul reduced annual GDP by an estimated 2.8 percent. Societal divisions may also embolden geopolitical adversaries. In a survey after the attack of October 7, 2023, 70 percent of Israelis believed that the domestic discord over the judicial overhaul affected Hamas’s decision to attack.

Mass societal mobilization is also difficult to coordinate and sustain. In Israel today, many citizens are psychologically exhausted, and anti-government protests, although still significant, have become smaller. As the political scientists Steven Levitsky and Lucan Way argue, illiberal leaders can also use state power to inhibit opposition, as individuals and organizations come to fear that publicly opposing the executive will cause repercussions such as tax audits and lawsuits.

The third and final path to upholding judicial power is a dangerous one: military involvement in politics. In Turkey during the 2000s, after Recep Tayyip Erdoğan and his Justice and Development Party rose to power, the military served as the backstop for a powerful judiciary. Turkey’s generals and judges shared a militantly secular ideology, and the armed forces publicly backed judicial efforts to constrain Erdoğan’s religious conservative party. Because Turkey’s military had repeatedly ousted elected governments in 1960, 1971, 1980, and 1997, the threat of military intervention put pressure on Erdoğan and his party to accept court decisions, rather than risk a constitutional crisis. Paradoxically, legal constraints on the executive—a hallmark of democracy—came from a deeply antidemocratic source, the threat of a coup.

Yet relying on men with guns to empower the judiciary was unsustainable, precisely because the military’s threat of coercion was democratically illegitimate. The military’s involvement enabled opponents of the judiciary to sell court reform to Turkish voters as democratic. Erdoğan argued persuasively that the military and judiciary were obstructing the “sovereignty of national will”—and won sweeping popular support for a constitutional referendum in 2010 that expanded the elected government’s influence over the courts. Key international players, including the European Union and President Barack Obama, praised the constitutional referendum as a step toward democracy. The referendum did improve a genuinely antidemocratic status quo, but it also created opportunities for Erdoğan to take control of the courts. In effect, the judiciary’s close relationship with the military enabled Turkey’s executive to cast himself as democratic when overhauling the courts—which severely eroded Turkish democracy.

[Read: Erdoğan is getting desperate]

Today, America’s judges face a dilemma that has more commonly confronted their peers in other embattled democracies: how to enforce their rulings against a president who is poised to challenge legal constraints on his power. Though Hamilton feared that “the judiciary is beyond comparison the weakest of the three departments of power,” courts elsewhere have sometimes proved surprisingly resilient. Judges can prevail over disobedient executives with support from a range of outside allies, but these methods of preserving the judiciary’s power are not created equal. For the future of U.S. democracy, it is not only whether but how the courts derive their power that will matter.