By Scott Gilbert |
“We will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling, and then we will get another bad ruling, and then we will end up in the Supreme Court…and we will win in the Supreme Court, just like the ban.” – Trump declaring a National Emergency, February 15, 2019
“When our movement is victorious, then a new Supreme Court will be assembled, and before this court…you may be sure heads will roll in the sand.” – Adolph Hitler, 1930 1
Whenever a new outrage comes down on the people the ACLU announces its new lawsuits against the Trump/Pence regime. It is important to challenge these horrors in court: the Muslim ban; tearing children from their parents; shredding environment protections; forcing women to bear children against their will… and more. But let’s face reality: Using a combination of judicial appointments, legal executive powers, and a willingness to shatter the rule of law, the judiciary under fascism becomes a weapon, not a savior.
And putting faith in the judiciary to stop the Trump/Pence regime’s fascist juggernaut is, despite one’s intent, accommodating to these horrors.
The Trump/Pence regime now has a conservative majority on the Supreme Court. It is rapidly stacking the courts with rightwing federal judges, and these judges are being fast-tracked largely with the cooperation of the Democrats. As of May 11, 2019, there are 870 Federal judges: 9 Supreme Court, 180 Court of Appeals, 673 District Court, and 9 Court of International Trade judges. Over one hundred of these high level judges, 12%, are now confirmed nominations by the Trump/Pence regime (the percentage of sitting judges who are Trump appointees is actually even higher if you do not include the positions that are currently open). There are 54 nominations of the Trump/Pence regime waiting to be confirmed. The Trump/Pence regime is re-making the Judiciary in its own fascist image.
The #resistance has taken false comfort in temporary injunctions, but these measures have not ultimately stopped the Muslim Ban, state-sanctioned discrimination of LGBT people, detention of immigrants, attacks on voting rights, attacks on access to abortion and birth control, and eviscerating the separation of church and state. These Trump-appointed judges will have reverberating effects for decades to come, especially without a sustained, non-violent mass movement that drives out the regime before it is too late.
Stacking the Courts with Pro-Fascists and Trampling on the Judiciary
But the Trump/Pence regime is not stopping at judicial appointments to remake the courts in the service of fascism. On April 25, 2019, as part of the step-by-step consolidation and normalization of a fascist state here in the United States, a new precedent by the Trump/Pence regime occurred: the indictment in a federal court of a state District Court Judge, Shelley Joseph, of Massachusetts for “… allowing a man to escape ICE agents….” This is having a chilling effect across the judicial system. State Attorney General Maura Healey stated, “Today’s indictment is a radical and politically-motivated attack on our state and the independence of our courts.”
This attack on a progressive judge is a concentration of what is happening on many levels in our legal system, and, in society in general.
There is already an infrastructure that provides a basis for dismantling the judiciary as a check on executive power. Especially after 9/11, a number of dangerous laws expanding executive power can be taken to their logical extremes and put into wholesale effect by the Trump/Pence Regime:
- October 26, 2001: The Patriot Act was passed which authorized indefinite detention without indictment for foreigners suspected of having links to “terrorist” organizations.
- September, 2006: the Military Commissions Act applies to “alien unlawful enemy combatants engaged in hostilities against the United States,” an intentionally vague and broadly defined term. In trials under this act, the President has the power to designate who is an unlawful combatant, and, appoints both the defense attorneys and military judges, destroying the long-standing right of habeas corpus.
- December 31, 2011: the National Defense Authorization Act, which marked the end of Habeas Corpus for U.S. citizens designated as enemies by the executive. It was signed by President Obama. It authorizes the indefinite detention, without trial or indictment, of U.S. citizens.
- But in addition to the legal framework, Trump has also demonstrated this willingness to shatter norms and burn up the rulebook again and again. He has ordered officials to disregard judicial orders, and has even hinted at the use of violence to control and intimidate his political enemies. As an MSNBC commentator noted, “It’s extraordinary that the sitting American president sees his own country’s laws as annoyances, but Trump has taken this one step further, suggesting to others that they should feel free to put aside legal constraints in pursuit of his agenda.” Time and time again, in tweets and speeches, Trump attacks the judiciary just as he attacks the press and his political enemies, calling them soft on crime with racist overtones about “national interests.”
Trump and his fascist regime are laying the groundwork for a much different way of running society, especially given the hints of “not honoring the 2020 elections” if Trump does not win. Clearly, there is a trajectory to what is going on with the Trump/Pence regime.
Echoing Nazi Germany
William Shirer, author of The Rise and Fall of the Third Reich: A History of Nazi Germany, notes that the Weimar Constitution of 1919, was “…on paper, the most liberal and democratic document of its kind the twentieth century had seen, mechanically well-nigh perfect, full of ingenious and admiral devices which seemed to guarantee the working of an almost flawless democracy.” This is what the courts in Germany were expected to uphold.
But after the burning of Reichstag (parliament) building in 1933, the dominoes began to fall. With a series of new laws, the Nazi Party launched a campaign to limit the “independence and impartiality” of the courts. The Law for the Restoration of the Professional Civil Services led to the dismissal of all non-Aryan officials, including judges (the Nazis defined “Aryans” as white Europeans who were not Jewish). This also included civil servants and judges who were Aryan but, for political reasons, mainly because they were communists, were deemed unable “…to act at all times and without reservation in the interests of the national state.” This new law soon applied to all professors of law at universities who were not Aryan or in-step with the Nazi Party, and they were dismissed.
Within a small amount of time, the remaining judges and courts showed a willingness to make their legal decisions based on Nazi ideology.
Recently, Mike Pence made a speech to the Federalist Society, a conservative legal think tank with a massive influence on the country’s judiciary. The five pro-fascist justices on the Supreme Court are members of the Federalist Society. Pence said, “For the sake of our liberty, our security, our prosperity and the separation of powers, this era of judicial activism must come to an end.” And, “…with president Trump in the White House, with conservatives in our court at every level all across this nation, with the support of the American people behind the ideals we hold dear, and with god’s help, we will make America safe again, … we will make America great again.” Make America Great Again is a clone of Hitler’s phrase Make Germany Whole Again.
As Coco Das wrote after a series of disastrous Supreme Court decisions in 2018, including the cementing of the third and final version of the Muslim Ban, “This is a fascist regime, changing all the rules of the game, remaking the courts, stealing a Supreme Court seat, and advancing their heartless ‘America First’ program of white supremacy, xenophobia, and Christian theocracy. It is high time to cast aside illusions about the normal channels being a way out of this mess. SCOTUS has declared that it does not care about voting rights. It is time to take the fight for abortion rights back into the streets. And we never should have stopped protesting the Muslim bans, versions I, II, and III, which is now the law of the land.”
People who think the courts will save us are living in a fantasy world. The checks and balances of the courts are not real when the courts are being designed by the very regime that wants people to believe the courts are independent from the Executive branch. This makes it easier to “get over” on the populace as the courts go along with this fascist trajectory. We need to understand the history of the Judiciary system, both past and present, and recognize it will not save us if we stand on the sidelines. We need to rely on ourselves.
There is only one realistic way to stop this fascist juggernaut. We need to organize now for the time when we can launch massive, sustained nonviolent protests in the streets of cities and towns across the country – protests that continue day after day and don’t stop, creating the kind of political situation in which the demand that the Trump/Pence regime be removed from power is met.
This is the crisis the Trump/Pence regime has not faced yet, and making this real is the mission of Refuse Fascism. Join us, going beyond just saying “Never Again” and actually stopping a nightmare for humanity.
1“In 1930, Hitler had vowed before a German tribunal that ‘[w]hen our movement is victorious, then a new Supreme Court will be assembled, and before this court…you may be sure heads will roll in the sand.”
Source: Quoted in the California Western International Law Journal, Volume 23, Spring 1993, Number 2, ‘They Shoot Lawyers, Don’t They?: Law in the Third Reich and the Global Threat to the Independence of the Judiciary’, Matthew Lippman, p.23
Original Source quoted in the above legal journal: Hitler’s Justice: The Courts of the Third Reich, 1991, Ingo Muller.
Primary sources for this article:
- ‘They Shoot Lawyers, Don’t They?: Law in the Third Reich and the Global Threat to the Independence of the Judiciary’, California Western International Law Journal, Volume 23, Spring 1993, Number 2, Matthew Lippman
- Mein Kampf, Adolf Hitler, 1925
- The Rise and Fall of the Third Reich: A History of Nazi Germany, William L. Shirer, 1960
- Ban ICE from Local Courthouses: Massachusetts Lawsuit, Dave Copeland, 4/29/19
- Judge accused of helping an undocumented immigrant escape an ICE officer,Ray Sanchez, CNN, 4/29/19
- The Suspension of Habeas Corpus in America,Jean-Claude Paye, Global Research, 6/8/13
- Hitler’s Justice: The Courts of the Third Reich, Ingo Muller, 1991
- In His Own Words: The President’s Attacks on the Courts, Brennan Center for Justice, 2018
- Remarks by Vice President Pence at the Federalist Society’s Seventh Annual Executive Branch Review Conference,https://www.whitehouse.gov/briefings-statements/, 5/8/19