The writ of the courts still runs—for now. But Trump is remaking the American bench, and destroying the norms on which democracy dependsby Dahlia Lithwick / July 18, 2019 / Leave a comment
When he first ran for the presidency in 2016, Donald Trump promised voters all sorts of things that worried even rock-ribbed conservatives who might otherwise have supported his candidacy. He pledged, for instance, to “open up the libel laws” so that newspapers would be legally liable for criticising him (unconstitutional). He called for a national stop-and-frisk policy (unconstitutional) and argued that US citizens accused of terrorism should be tried in military tribunals (also unconstitutional). He advocated for torture of terror suspects and the targeting of their families (unconstitutional). He said he would push to revoke birthright citizenship from the children of undocumented immigrants (unconstitutional) and ban all Muslims from entering the country (unconstitutional) and create registries for Muslim citizens (unconstitutional). He also pledged to use his Justice Department to investigate Hillary Clinton and “lock her up” as well as his other political enemies (you get the picture).
The National Review, one of the nation’s flagship conservative journals, was so worried about these and other lawless promises that it published, in February 2016, a feature titled “Conservatives Against Trump,” in which prominent public intellectuals on the right called out the candidate for—among other things—his contempt for the constitution and the rule of law. But Trump was elected anyhow. Amid the immediate shock of the result, David Remnick at the New Yorker declared it “nothing less than a tragedy for the American republic, a tragedy for the Constitution… a test of the strength, or the fragility, of American institutions,” and maybe even “the way fascism can begin.”
The rule of law is a curious thing. It is made up not only of the skeletal legal rules, the ability of the courts and other authorities to enforce them, but also a range of norms, precedents and assumptions—the tissue, ligaments and nerve endings that hold those bare bones in place. These too are, in practice, essential to checking the caprice of brute power, and ensuring justice is pursued without fear or favour. Had the transition lasted longer than a couple of months, there might have been an interesting discussion among conservative and liberal critics of Trump about where the threat would come from—might his White House literally refuse to do the courts’ bidding? Might it instead subvert or bully those courts? Or might, in the end, all the sound and…