Trump and the Courts

They aren’t as powerless as you may think

The overwhelming number of Democrats with whom I speak, as well as many here on Substack, are convinced that the courts will roll over for Trump.

I’m somewhat more optimistic about how this will play out. First, let’s look at the history from four years ago. Trump attempted more than sixty times to persuade the courts to throw out the results in the swing states. The outcome was total failure, in many cases at the hands of Trump judges.

As an attorney, I can tell you that most attorneys who are appointed to judgeships become more careful and sober in their rulings. One reason is the humiliation of being overruled by an appellate court. The other reason is that, with admitted exceptions, most judges really do want to do the right thing. I know a few judges with whom I am still in touch and to a man and woman, they are disgusted by the Supreme Court.

If as expected Trump attempts to contravene or circumvent the law, any number of parties can sue the administration. Those cases will go to a District Court judge who may have been appointed by Clinton, Obama and Biden. If a District judge rules against Trump, the case will go to one of the 13 Federal Circuit Courts of Appeal. Again, many of the judges in these Circuit Courts are Clinton, Obama and Biden judges.

Trump will of course appeal if he loses. In many cases, the facts and the law will be against him, and he will lose.

The obvious question is what happens if these cases make it to the Supreme Court, as some will. Based on the history of four years ago, the Court will decline to take on cases where the plaintiff lacks legal and factual support for its arguments. Most important, the Court knows that civil disorder will result if they sanction violations of laws and regulations. Emotions are raw and will be for some time. The Court will have to keep that in mind. In addition, the number of cases that will go to the Supreme Court will be far above what the Court has time to hear, so if the Circuit Court rules against him, in many cases he will lose.

What happens if Trump defies the Court? There will be requests for emergency injunctions to stop him. If Democrats by some means get back the narrowly Republican House during the present Congress (not impossible) he will be impeached for a third time.

The point is that the number of cases and their unique circumstances will lead to tremendous delays. With the exception of deportation, most will go slowly through the system. In the deportation cases from 2021, a federal judge ruled that the deportations would result in “imminent danger that there will be substantial and irreparable injury to refugees and other individuals from nations subject to the order.” The same thing is likely to happen again. For perspective, in his last term, Trump lost 57% of the time before the courts.

Trump will repeatedly violate the Adminstrative Procedures Act, which gives the public time to comment on regulatory changes. When he violates it, he will be brought to court yet again, with all of the ensuing delays.

His tariffs will be challenged in court as well. The interesting question here is whether the Supreme Court will allow Trump to tank the economy, which his tariffs will almost certainly do. The Roberts Supreme Court gave itself the right to veto policy decisions by the executive that are deemed excessively ambitious. Most of Trump’s agenda falls into that category.

Any attempt by Trump to arrest his opponents would violate both the First and the Fourth Amendments, the latter requiring probable cause to permit an arrest. His deportation policies will almost certainly violate constitutional due process guarantees and his anti-transgender policies may violate constitutional protections against discrimination. His attempt to impose Schedule F, the law he proposes to use to fire civil servants, is in direct violations of a law enacted by Congress. That case will be tied up in the courts for a long time, as we can be sure that fired employees will sue en masse.

The strongest argument against Trump’s ability to enact his agenda is the “major questions doctrine” an authority the Court gave itself not long ago. They would have to decide, as noted above, whether they want to usher the Democrats into power by permitting Trump to overreach on issues that affect the national economy such as deportations and tariffs. The Court must know that there will be retribution when Democrats take over again, in the form of court-packing, retroactive term limits and ethical regulations.

Before you say, “Well, what if there are no more elections?, let me say that there would be massive legal, political and social upheaval in response to Trump’s effort to cancel elections. Ask yourself whether that would be enough to bring you out into the streets. It certainly would be for me. The Supreme Court would not be able to support him, and if the Democrats won back the House and Senate in 2026

he will be impeached yet again, and this time he is likely to be convicted.

Even if he isn’t, calling out the Armed Forces to prevent elections will fail. The rank and file would not cooperate with him and neither would many officers. If they did, we would have a full-fledged revolution. I am confident the 75 million Americans who voted for Kamala Harris and the many others who voted for Democratic representatives and senators would not stand for it. Trump may be a wannabe dictator, but despite his proclamations he is not God. Besides, he will have no credibility after the damage he has done by 2028. He may even be neutered by 2026 when the Democrats could win the midterm elections.

While I know all of this will not reassure many of you, I firmly believe that these criminals will not be able to run the gauntlet of courts they will need to rule in their favor. Also keep in mind that the courts will not decide these cases quickly. There are too many serious issues at stake to permit rapid judgments.

There is no doubt that we face an existential crisis in these times. That said, there are brakes that can cause delays and possibly overturn his efforts. Failing those, we the people have the ability to stand up and say, “enough.” He may be so unpopular by then that the job may be easier than we all think. No matter what, we do not have the luxury of submitting to this tyranny. It would be a betrayal of our ancestors and of future generations.