That may thrill Trump’s base and the conservative legal movement that has seen the Trump administration fill numerous federal judicial positions with its ideological allies. But Trump’s impact on the Supreme Court has also stirred growing alarm and anger. The president’s critics and opponents are furious over the naked hypocrisy of many of the same Republican senators who blocked President Barack Obama’s nominee in 2016 on grounds that such a weighty decision should not proceed in the middle of an election year.
Moreover, Trump’s critics see his latest move as part of a broader autocratic power play. For months, the president has openly called into question the legitimacy of the upcoming election, ahead of which polls show him trailing by a significant margin nationally. A recent article by the Atlantic’s Barton Gellman outlined the all-too-real, looming set of constitutional crises that could follow, should Trump attempt to remain office or question the credibility of the vote. Key to such an attempt would be both Trump’s considerable executive powers and the conservative majority in the Supreme Court, which Trump has already admitted may be crucial to maintaining his place in the White House.
It is difficult for the public to see the court as politically neutral “when a primary reason being given in favor of an expedited Senate confirmation hearing is … so the new justice can be there in time to vote in a way that will ensure the reelection of the president who just nominated them,” Richard J. Lazarus, a Harvard University law professor, told The Washington Post’s Robert Barnes.
The overt politicization of high courts is a major reason democracies backslide. In President Recep Tayyip Erdogan’s Turkey, thousands of state prosecutors and judges have been removed in recent years as the ruling regime weaponized the legal system against its opponents. The flood of inexperienced loyalists newly assigned to those posts has made a mess of the country’s courts, as a Reuters exposé detailed this year.
In Hungary and Poland, illiberal nationalist ruling parties have pushed through laws that have to varying degrees compromised the independence of the judiciary. “Authoritarian populism tends to erode democracy gradually, one piece at a time,” wrote political scientist Brian Klaas. “In countries such as Hungary and Turkey, it took years, even decades, for authoritarian leaders to wear away democratic institutions. Eventually, they succeeded. The trappings of democracy remain. But elections aren’t fair. The rule of law is a political weapon. Checks on executive power are increasingly meaningless.”
Trump doesn’t have the same domineering grip over state institutions as, say, Hungarian Prime Minister Viktor Orban, but he has made clear that he is willing to wield what powers he has to extend his rule. Trump’s stated refusal so far to commit to a peaceful transfer of power should he lose the election shocked observers at home and overseas.
“We watch in astonishment as your president breaks taboos one by one,” wrote Friedbert Pflüger, a former center-right German parliamentarian, in an email to the Atlantic Council’s Fred Kempe. “Will Trump accept an electoral defeat, especially a narrow one? Are we heading for a coup d’etat and civil war? Is there a threat of a nationalistic [autocracy] in the center of the Western world?"
On Sunday, protesters once more filled the streets of the Belarusian capital Minsk in defiance of President Alexander Lukashenko, who remains in power following an election result widely viewed to be fraudulent. Even there, some pro-democracy demonstrators link Trump to their own leader’s autocratic posture. “It reminds me of Belarus, when a person cannot admit defeat and looks for any means to prove that he couldn’t lose,” Kiryl Kalbasnikau, a 29-year-old opposition activist, told the New York Times. “This would be a warning sign for any democracy.”
Trump’s supporters tend to bemoan what they see as liberal hysteria over the president. But many among them struggle to dismiss the corrosive effect of Trump’s rhetoric. “The rule of law is vital to free and fair elections, and Trump is right not to forswear his legal options,” noted the Wall Street Journal’s conservative editorial page. “Yet his reckless comments give credence to Democratic hysteria, and he should clarify his views if he doesn’t want to lose more voters who think he lacks the temperament or self-control for the office.”
Others see Trump as the outgrowth of a broader and more irreconcilable phenomenon: A Republican Party that is deploying tactics to suppress the vote, that is bent on further capturing the federal judiciary, and that seeks majoritarian power in a context where it increasingly represents only a minority of Americans.
“The only way we move forward is when Republicans reform, and cease to be an increasingly authoritarian white nationalist party,” Steven Levitsky, a Harvard professor and the co-author of “How Democracies Die,” told Vox.