What Jackson did say to his longtime associate, John Coffee, was: “The decision of the Supreme Court has felt still-born, and they find that it cannot coerce Georgia to yield to its mandate”.
All of which matters because the spirit of Jackson is now routinely invoked by the MAGA movement as Donald Trump wages a fast-escalating war with the courts. As far back as 2021, JD Vance said that his advice to his future boss would be to fire all civil servants: “And when the courts – because you will get taken to court – and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’”
More recently, on February 9, the vice president posted on X: “Judges aren’t allowed to control the executive’s legitimate power”. In a podcast released on May 21, he warmed to his theme in conversation with Ross Douthat of the New York Times. “I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people”.
Chief justice John Roberts, Vance continued, was failing in his supervision of the judiciary: “You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people they’re not allowed to have what they voted for. That’s where we are right now.”
The Democratic Party is in a state of aphasic shock, paralysed by the electoral disaster of November 5. Both houses of Congress are controlled by the Republicans, who, with a tiny number of exceptions, are craven in their obedience to Trump.
That leaves journalists, a great many of whom continue, valiantly, to speak truth to power; but do so in the face of increasing intimidation and, in some cases, knowing that their proprietors have business exposure outside the media sector that makes them fearful of Trump.
So – in practice – the line that stands between the republic and authoritarianism is judicial. At the time of writing, there have been 251 legal challenges to this administration, whose actions have been halted in at least 181 cases. Time and again, Trump and his senior officials have found themselves obstructed by judges from all over the country whose orders have nationwide force. As the solicitor general, D John Sauer, has complained, this means that the government has “to win everywhere, while the plaintiffs can win anywhere”.
Last Wednesday, the US Court of International Trade ruled against the president’s tariff regime, finding that “the Constitution assigns Congress the exclusive powers to lay and collect Taxes, Duties, Imposts and Excises” and that “any interpretation of IEEPA [the 1977 International Emergency Economic Powers Act] that delegates unlimited tariff authority [to the president] is unconstitutional.”
Helpfully reposting photos of the three trade court judges, Stephen Miller, the White House deputy chief of staff, claimed on May 29 that “We are living under a judicial tyranny”. A federal appeals court last week granted a suspension of the order, meaning that, for now, Trump can pursue his deranged tariff strategy, pending further legal action. On Truth Social, he posted that he hoped “the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY.”
But will it? On Friday, the highest court in the land gave the administration interim approval to revoke a Biden-era humanitarian programme to grant temporary residency to more than 500,000 migrants facing political turmoil or warfare. This “humanitarian parole” system is intended to help people from countries like Nicaragua, Venezuela, Cuba and Haiti.
On May 19, the supreme court also gave emergency approval to the government to lift the separate “Temporary Protected Status” from nearly 350,000 Venezuelan migrants. The case is still subject to appeal. But immigration officials may now proceed with mass deportation – perhaps to the Salvadoran gulag.
Yet the president and his allies remain furious with the general response of the judiciary to MAGA’s egregious “remigration” plan. On April 7, the supreme court ruled that the government must give “constitutionally adequate notice” to individuals before their removal under the 1798 Alien Enemies Act; 12 days later, it intervened again, this time in the middle of the night, to block deportations of Venezuelans from Texas under the same antiquated legislation.
The court has also ruled that the administration must “facilitate” the return of Kilmar Abrego Garcia, the 29-year-old migrant who had been living in Maryland for 13 years, sent back to El Salvador after what the government has admitted was an “administrative error”.
In this case, as in many others, Trump and his team have opted for what the US legal scholars Leah Litman and Daniel Deacon refer to aptly as “legalistic noncompliance”: quibbling over what “facilitate” means precisely, resorting to pedantry and slow-walking action mandated by the courts.
With characteristic indifference to the responsibilities of his office – not to mention the oath that he took – the president himself has become an expert in non-expertise, claiming to have insufficient legal knowledge to offer an opinion on even the most basic juristic questions.
Asked on NBC’s Meet the Press on May 4 whether citizens and non-citizens alike deserved due process, Trump said, “I don’t know. I’m not, I’m not a lawyer.” Pressed by Kristen Welker on the substance of the Fifth Amendment which refers to the rights of the “person”, the president replied: “It might say that – but if you’re talking about that, then we’d have to have a million or two million or three million trials.”
In an interview with the Atlantic to mark the first 100 days of his second presidency, Trump insisted that he would abide by any supreme court ruling – but went on to complain that “we have some judges that are very, very tough. I believe you could have a 100% case – in other words, a case that’s not losable – and you will lose violently. Some of these judges are really unfair.”
His language was less restrained in a special Memorial Day post on Truth Social in which he attacked “JUDGES WHO ARE ON A MISSION TO KEEP MURDERERS, DRUG DEALERS, RAPISTS, GANG MEMBERS, AND RELEASED PRISONERS FROM ALL OVER THE WORLD, IN OUR COUNTRY SO THEY CAN ROB, MURDER AND RAPE AGAIN – ALL PROTECTED BY THESE USA HATING JUDGES WHO SUFFER FROM AN IDEOLOGY THAT IS SICK, AND VERY DANGEROUS FOR OUR COUNTRY”.
Which shows that this is a temperamental as well as a constitutional clash. Trump demands instant gratification; the courts exist to deliberate. This incompatibility is now becoming perilous for the republic.
Miller, meanwhile, has said that the administration is “actively looking” at suspending habeas corpus for migrants – the individual’s fundamental legal right to challenge his or her detention. In this context, it is worth noting that Kristi Noem, the homeland security secretary, revealed in a senate committee hearing on May 20 that she completely misunderstood this most basic legal doctrine, defining it as “a constitutional right that the president has to be able to remove people from this country.”
Even more revealing was what Miller went on to say: “Look, a lot of it depends on whether the courts do the right thing or not.” In other words, the government will abide by judges’ decisions – as long as they do what the administration wants.
In Federalist No 78 (1788), Alexander Hamilton, writing as “Publius”, expressed fears that have rarely seemed more pertinent. The judiciary, he said, was by far the weakest of the three supposedly co-equal branches of government (the other two being the executive and the legislature); having “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment”.
What were once abstract issues for constitutionalists to debate in the lecture hall are now all too practical and menacing. To start with, Mike Johnson, the House speaker, threatened in March to use the congressional “power of funding” to “eliminate an entire district court”.
Founded in 2019, the Article III Project (A3P) mobilises thousands of phone calls, emails and social media messages to members of Congress to back Trump against the judiciary and is supporting bills introduced by senator Chuck Grassley of Iowa, and representative Darrell Issa of California to stop federal district judges from issuing nationwide court orders.
More alarming is the surge in outright intimidation of the judiciary. Since Trump’s return, unexplained pizza deliveries have been made to federal judges and their families – a way of telling them that their enemies know where they live. Deplorably, many have been made under the name of Daniel Anderl, the son of a federal judge who was murdered in 2020 while protecting his parents from a furious litigant.
Judges considered hostile to Trump have also been “swatted”, where a hoax call is made to summon a SWAT team to a particular address – in the hope that heavily armed police officers, following procedure, will inadvertently traumatise whoever is at the location in question.
On April 25, Hannah Dugan, a Wisconsin circuit court judge, was arrested and has now been indicted for allegedly assisting an undocumented immigrant in evading arrest. On Friday, 138 former judges filed a legal argument warning that Dugan’s indictment “threatens to undermine centuries of precedent on judicial immunity, crucial for an effective judiciary.”
Pam Bondi, the attorney general, takes a different view. “The [judges] are deranged is all I can think of,” she said on the day of Dugan’s arrest. I think some of these judges think that they are beyond and above the law. They are not, and we are sending a very strong message today. If you are harbouring a fugitive, we will come after you and we will prosecute you. We will find you.”
Most shocking of all are the formal discussions among senior judges, revealed by the Wall Street Journal, about forming their own armed security force. At present, the Supreme Court is protected by a special police service which it also oversees; other courts, in contrast, deploy US marshals. Notionally, these officers have a statutory duty to follow the judiciary’s instructions. In practice, they work for the Department of Justice, and therefore for Bondi.
What, in practice, would happen if the Trump administration flagrantly defied the Supreme Court? Thanks to the court’s own landmark ruling last July, the president himself enjoys immunity; he could also pardon officials accused of criminal contempt.
Another option is civil contempt, which seeks to enforce future compliance (the person in contempt of this kind is said to “hold the keys to his own cell”). The advantage here is that the courts can deputise other agencies to enforce their rulings. But which agencies, precisely? Which, in this climate of fear, would be willing to risk retribution from MAGA?
Chief Justice Roberts is an “institutionalist” which means that his highest allegiance is to the preservation of the system that protects the constitution. In the words of his biographer Joan Biskupic, “he elevated the institutional integrity of the Court above all”.
And, to be fair to Roberts, he wrote in his most recent end-of-year report: “Within the past few years… elected officials from across the political spectrum have raised the spectre of open disregard for federal court rulings”. When Trump posted in March that a judge frustrating his deportation plan “should be IMPEACHED!”, the chief justice issued a direct rebuke, declaring that this was “not an appropriate response to disagreement concerning a judicial decision.”
Yet it is precisely this value-system that may deter Roberts from a direct confrontation with the president. For the institutionalist, the prospect of the Supreme Court appearing impotent before an autocratic president is intolerable. Paradoxically, because such a defeat would shatter his worldview, he will postpone the moment of reckoning as long as he possibly can.
But he cannot do so indefinitely. High Noon is approaching, and only one of the gunfighters – president or Supreme Court – can prevail. The outcome of that contest depends on a question of global consequence: whether the US remains, as it has long been, a nation of laws; or becomes something altogether more dangerous.