Democracy, rule of law, and the Musk Presidency

David Lurie has a helpful post about Trump’s and Musk’s approach to governing, i.e., unconstrained by law. He looks back to some key moments like Nixon’s “when the president does it, that means that it is not illegal” and the notion of the Unilateral Executive championed by Dick Cheney, the Elon Musk of the early 2000s (but not as wealthy). (1)

It’s a good analysis. But there is one comment that deserves closer scrutiny: “Nixon’s [when-the-President-does-it] declaration that the president is the arbiter of legality flew in the face of the longstanding principle of judicial review providing that the judiciary has exclusive power to decide disputes over the nation’s Constitution and laws.”

In the concept of liberal democracy as the world recognizes it today, the idea of democratic governance and the rule of law are intricately connected. Connected as in, you can’t have one without the other. If the laws are not produced by a democratic system, they have no democratic legitimacy. That whole John Locke/Thomas Jefferson/right-to-revolution thing in the Declaration of Independence is an expression of that idea.

And maintaining the rule of law also means having an independent court system. The European Union operates on this definition of judicial independence:

[The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. (2)

The EU has had disputes for years over the independence of the judiciary in Hungary and Poland. The current Polish government of Prime Minister Donald Tusk that was elected in December 2023, has been actively cooperating with the EU to re-establish judicial independence after it was suppressed by previous government under the (so-called) Law and Justice (PiS) Party. The dispute with Viktor Orbán’s authoritarian government in Hungary continues.

In Israel, Prime Minister Benjamin Netanyahu’s government has been actively working to breach the independence of the judiciary, not least because Netanyahu himself is looking to avoid going to prison on corruption charges. When we hear references in the news to emphasis to abridge democratic institutions in the State of Israel, the attempt to eliminate judicial independence is at the center of the disputes.

Other countries like Argentina, Brazil, and Venezuela have had serious problems in the last two decades related to judicial independence or the lack thereof. And the fact that in the United States, Supreme Court Justices are allowed in practice to take large bribes from wealthy sponsors, including ones who have cases before the Court, has made many Americans aware of how drastically the Republicans using technically non-partisan institutions like the Federalist Society to give a very strong partisan twist to the nation’s highest Court. Rhode Island’s Democratic Sen. Sheldon Whitehouse has taken the lead in pointing repeatedly to the urgency of this problem.

For people who actually support democracy and the rule of law, the Dred Scott decision (1857) would be a near-unanimous choice for the most damaging Supreme Court decision ever. As Melvin Urofsky describes it:

Not surprisingly, the North exploded in denunciations of Taney’s opinion. Several sober appraisals in the Northern press decimated the chief justice’s tortured legal reasoning. The Republican editor Horace Greeley published Justice Curtis’s dissent as a pamphlet to be used in the elections of 1858 and 1860. The press and pulpit echoed with attacks on the decision that were as heated as Southern defenses of it. Taney’s hopes of settling the issue lay smashed. If anything, Scott v. Sandford inflamed passions and brought the Union even closer to dissolving.

For all practical purposes, Northern courts and politicians rejected Scott v. Sandford as binding. In an advisory opinion, Maine’s high court declared that African Americans could vote in both state and federal elections. The Ohio Supreme Court ruled that any slave coming into the state with his master’s consent, even as a sojourner, became free and could not be reenslaved upon returning to a slave state; the New York Court of Appeals handed down a similar ruling in Lemmon v. The People (1860). In several states, legislatures resolved to prohibit slavery in any form from crossing onto their soil and enacted legislation freeing slaves passing within their borders.

Taney is remembered now almost solely for the blatantly pro-slavery decision he wrote and for his demeaning comments about African Americans. When he died in 1864, he was roundly denounced and vilified in the North. Republican Sen. Charles Sumner of Massachusetts predicted that “the name of Taney is to be hooted down the page of history.” [my emphasis]

(There is more than a little sad irony here. Taney - whose name btw was pronounced like “Toney” -) as a young Baltimore lawyer had handled pro bono cases defending escaped slaves from being sent back to their owners. He was also the Attorney General for Andrew Jackson and played a key role in doing away with the Bank of the United States, aka, the Money Power – which in the context of the time was genuinely progressive policy and at least a prototype of left populism.)

This was a disastrous, crassly political decision that was a blatant intervention to protect slavery and the expansion of slavery no matter what the law or legal precedents were. It was a clear danger to the democracy and freedom that did exist, not just a restraint on expanding and enhancing democracy by eliminating slavery.

And it was a genuinely radical decision. And everyone who wasn’t a fan of Calhoun’s conviction that freedom and democracy were only for white male slaveowners could see that the decision was a basic challenge to freedom and democracy for everybody else.

So, no, Lurie’s idea that “the judiciary has exclusive power to decide disputes over the nation’s Constitution and laws” has never actually been the assumption in the US, even while people understood and supported the concept of judicial review and independence of the judiciary. Neither of those concepts have ever meant “whatever the courts do is okay and we can’t question any of it.”

Judicial review is not specified in the Constitution itself. Thomas Jefferson had favored explicitly including it. Ironically, the principle and practice of judicial review in the US was established with the majority opinion of Chief Justice John Marshall in Marbury v. Madison (1803), when he was taking a position opposed to that of then-President Thomas Jefferson. It was a clever decision that established the judicial-review principle while side-stepping a direct conflict with the Jefferson Administration. I recall a reference that I have been unable to track down just now comparing the confrontation to two competing male baboons who howl horrifically in each other’s faces but don’t actually come to a physical fight.

In his decision, Marshall declared a portion of a law unconstitutional, thus establishing the practice of judicial review for consistency with the Constitution. But his decision did not include any direction to the Administration to actually do anything specific, so Jefferson was not faced with any choice to defy the order.

But even with general acceptance since 1803 of the federal courts’ power of judicial review, that is not the same thing as the judiciary having “exclusive power to decide disputes over the nation’s Constitution and laws.” No, the Congress and the President also have power to decide such disputes. And both those Branches play huge roles by their actions in shaping the Constitutional tradition.

And the corrupt, authoritarian-dominated Supreme Court in their 2024 Trump v. United States decision leaped right into Roger Toney/Dred Scott territory. As the historian Shawn Wilentz puts it:

The Roberts Court has not just protected Donald Trump so that he might advance his own agenda or appoint young replacements for Alito and Thomas and perhaps one of the liberal justices, consolidating a hard-right majority for a generation at least. It has not just ignored the central principle of stare decisis to overturn long-settled law, as it did in the Dobbs [anti-abortion-rights] decision. It has radically changed the very structure of American government, paving the way for MAGA authoritarianism just as the Taney Court tried to pave the way for enshrining the Slave Power. [my emphasis] (4)

Yes, Congress can do something called jurisdiction stripping

In fact, the original Constitution itself gives Congress the power to restrict the appellate jurisdiction of the federal courts, specifically Article III, Section 2, Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (5)

There are a limited number of types of cases described in the Constitution which can be taken directly to the Supreme Court. But Congress actually has an extensive power to define the types of cases federal appeals courts are empowered to hear. (6) This authority is also called “jurisdiction stripping.”

Unlike the lower federal courts, the Supreme Court's existence is mandated by article III of the Constitution. However, it is only the Court's relatively limited original jurisdiction that is unequivocally insulated from congressional regulation. The Court's appellate jurisdiction-by far its greater source of authority-is given, "with such Exceptions, and under such Regulations as the Congress shall make." A common sense interpretation of the constitutional language would seem to lead to the conclusion that Congress possesses fairly broad authority to curb Supreme Court appellate jurisdiction. (7)

So, outside of narrow exceptions, Congress can designate that the federal appeals courts have no authority to review the constitutionality of a particular measure:

The Exceptions Clause in Article III grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. And more generally, with the power to create lower federal courts, Congress possesses the power to eliminate the jurisdiction of the lower courts. Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases. Indeed, Congress has even eliminated a court’s jurisdiction to review a particular case in the midst of litigation.

That wound you hear in the background is that of “resistance liberals” gnashing their teeth and rending their garments and gasping, “But if the Democrats do that, the Republicans will do it, too!” When it comes to finding excuses to not fight for their own side, such Dems have practiced becoming instantly oblivious to the Republican Party from Joe McCarthy to Newt Gingrich to Mitch McConnell and President Elon Musk and the fact that they don’t ask permission to use powers explicitly given to them, or even powers explicitly prohibited!

The current Wikipedia page on jurisdiction stripping cites several current examples in which Congress has restricted the jurisdiction of federal appellate courts. (8) (As of this writing, Wikipedia has not yet been acquired by any TechBro billionaire disciples of some dystopian authoritarian political theory.)

A key court precedent on jurisdiction stripping is Ex Parte McCardle (1869). It involved an un-Reconstructed Mississippi newspaper editor, William H. McCardle, who was arrested for violating Reconstruction law and charged with sedition. He applied for habeas corpus under another federal Reconstruction law. His appeal was rejected by a federal circuit court, so he appealed further:

The Supreme Court agreed to hear McCardle’s appeal, and the Radical Republicans envisioned a repetition of Ex Parte Milligan, in which the court limited the jurisdiction of military tribunals. Fearing that the court might declare the Reconstruction Acts (which mandated military occupation of the South) unconstitutional, the Radicals passed a law stripping the court of its power of judicial review with regard to Reconstruction measures. President Andrew Johnson vetoed the bill, but Congress overrode the veto.

In 1869 the court dismissed McCardle’s appeal on the grounds that it now lacked jurisdiction over such matters. Congress had thus established its supremacy over both the federal executive and judicial branches [on this issue]. (9)

So, timid Dems, take a deep breath and buck up on this one. The Republicans have already done it! The Radical Republicans, even! (Okay, Radical Republicans meant something very different and very pro-democracy and pro-rule-of-law in those days. But, still ...)

Dems: Plan for the future

If the Democrats are able to retake the White House and both Houses of Congress in the 2028 elections, they should take several steps to undo the Orbanist trend the Republicans have established by drastically reducing judicial independence, including:

• Do high-profile investigation of Supreme Court corruption and pass strict laws against such corruption.
• Impeach and remove federal judges with serious ethical or corruption problems or who acted in ways seriously inconsistent with independent courts.
• Establish effective limits on federal campaign donations and campaign spending, i.e., overturning the Citizens United decision that created the current situation where a South African, apartheid-loving billionaire can buy his way into being the acting President of the United State. And remove federal appeals jurisdiction over its constitutionality.
• Pass the Voting Rights Act blocked by the two notorious latter-day Democratic racists Kyrsten Sinema and coal baron Joe Manchin blocked from passing during the Biden Administration. And remove federal appeals jurisdiction over its constitutionality.
• Pass a federal law establishing full equality for women. And remove federal appeals jurisdiction over its constitutionality.
• Codify at least the basic Roe v. Wade protections for abortion rights on a national basis. And remove federal appeals jurisdiction over its constitutionality.
• Ban racial segregation in public accommodations and public schools. And remove federal appeals jurisdiction over its constitutionality.
• Abolish the [blankety-blank] filibuster rule that lets a conservative Senate minority block darn near any legislation so that all these things can actually get done!

This is a six-minute explanation of the Dred Scott decision: (10)

 

Notes:

(1) Lurie, David (2025): Trump is assaulting his own legitimacy. Public Notice 02/11/2025. <https://www.publicnotice.co/p/trump-defying-court-rulings> (Accessed: 2025-11-02).

(2) EU Commission (2022): Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092, Annex 1: Breaches of the principles of rule of law. <chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52022XC0318(02)> (Accessed: 2025-11-02).

(3) Urofsky, Melvin I. (2025): Dred Scott decision. Encyclopedia Britannica 02/10/2025. <https://www.britannica.com/event/Dred-Scott-decision> (Accessed: 2025-11-02).

(4) Wilentz, Sean (2024): The ‘Dred Scott’ of Our Time. New York Review of Books 08/15/2024, 35.

(5) ArtIII.S2.C2.4 Supreme Court Appellate Jurisdiction. Constitution Annotated. <https://constitution.congress.gov/browse/essay/artIII-S2-C2-4/ALDE_00001221/> (Accessed: 2025-11-02). Given the type of purging of federal websites that the Musk-Trump Administration is doing as of this writing, such references may soon become more challenging to access.

(6) Power of Congress to Control The Federal Courts. Justia U.S. Law, n/d. <https://law.justia.com/constitution/us/article-3/35-the-theory-of-plenary-congressional-control.html> (Accessed: 2025-11-02).

(7) Redish, Martin H. (1982): Congressional Power to Regulate Supreme Court Appellate Jurisdiction under the Exceptions Clause: An Internal and External Jurisdiction under the Exceptions Clause: An Internal and External Examination. Villanova Law Review 27:5, p. 901. <https://digitalcommons.law.villanova.edu/vlr/vol27/iss5/3> (Accessed: 2025-11-02).

(8) Jurisdiction stripping. Wikipedia 01/21/2025. <https://en.wikipedia.org/w/index.php?title=Jurisdiction_stripping&oldid=1270847488> (Accessed: 2025-11-02).

(9) Editors (2006): Ex Parte McCardle. Encyclopedia Britannica 12/11/2006. <https://www.britannica.com/event/Ex-Parte-McCardle> Accessed 11 February 2025.

(10) Split in Two: The Dred Scott Decision-1857. Minnesota Historical Society YouTube channel 10/23/2013. <https://youtu.be/QR-VTrPcMDg?si=6aDGfGItoYWMMt6a> (Accessed: 2025-11-02).