Why Trump Should Not Fight the Courts

By Henry Olsen

Thursday, April 24, 2025

 

Many supporters of President Donald Trump seem to be attacking the judiciary when judges or appellate courts rule against the administration’s position. This is a potentially consequential mistake, for both the short- and long-term future of conservative-populist politics.

 

It’s understandable why MAGA activists are upset at many courts’ seeming eagerness to thwart the administration’s agenda. Many district judges are using their power to thwart legitimate executive objectives. Indeed, the unprecedented use of nationally binding injunctions by a single judge threatens to upend the separation of powers.

 

The Supreme Court is also not a reliable pro-administration tribunal. Chief Justice John Roberts often seems hesitant to back broad claims of executive power, and he is often joined by at least one other Republican-appointed justice. If conservatives wanted a rubber stamp Court rather than one that acted in accord with the law, they now realize their wishes have been thwarted.

 

Neither of these concerns, however, justify joining the Democrats to delegitimize the Court.

 

Fans of Trump’s expansive claims of executive power should recall that precedents work two ways. If Trump can effectively rewrite statutes or make broad policy actions on the basis of flimsy legal authority — which he is and has been doing — so, too, can Democrats.

 

The approach toward the legal system that some on the right back would enable a Democratic president to proclaim a “climate emergency” and rein in the entire private sector economy, enact the terrible John R. Lewis Voting Rights Amendment, and perhaps even unilaterally recognize the Equal Rights Amendment as a valid part of the Constitution.

 

Conservatives do not want any of these things to occur, but conservative control of the Court is the primary way to prevent that. If Republican presidents stretch the limits of executive power and demand that courts ratify them, it’s only a matter of time before Democrats use that to the country’s detriment.

 

That’s the long-term argument. There’s also a good short-term argument for why respecting adverse court rulings works in Trump’s and the GOP’s favor: It contrasts with Biden’s and the Democrat’s words and deeds.

 

Conservatives have had trouble raising public concern over the lawfare that the left has employed over the past few years. That’s likely because they currently appear to be merely partisan disputes, like those over Trump’s indictments.

 

Now imagine a world where the administration regularly proclaims their recognition of the legitimacy of adverse court rulings. They can then also regularly bring up the Democrats’ own stated desire to pack the courts to ensure there would never be adverse rulings.

 

In short, submitting to the court in the short term also lets the administration campaign as the real defenders of the rule of law.

 

That completely turns the tables on the left. They become the only voice calling for the removal of barriers to executive action; they are the ones who don’t want constitutional checks on executive power.

 

Trump and Republicans then get to claim the democracy issue for themselves.

 

Doing this also means that Trump needs to legislate to get his full agenda. That forces Democrats in Congress to oppose popular measures that would deport illegal migrants and criminals, among other things.

 

Thirteen Democrats in the House represent districts that Trump carried while only three Republicans sit in seats that Harris won. More important, ten Senate Democrats represent states that Trump won, and four others are from states that Harris won by less than five points.

 

Republicans should be constantly forcing these members to choose between their rabid liberal base and their moderate swing-voting constituents. Pushing bills to codify executive actions stuck down by courts does that and thereby increases the chance that Republicans can avoid striking deals with Democrats simply to pass basic conservative ideas.

 

America is not Great Britain, whose parliamentary system effectively poses no serious barrier to government power other than maintaining party unity. Our Founders established a complex system — federalism, bicameralism, an independent judiciary with the right to strike down unconstitutional laws — precisely to constrain arbitrary power and ensure that the people’s will is done.

 

Trump’s executive actions, especially on immigration, are not clear violations of individual rights. If courts find that he is exceeding his powers in some areas, Congress can simply rewrite the law. Pushing them to do that slows things down, but it also means that Democrats cannot run away from their unpopular stances.

 

Liberals changed America by winning repeated elections, thereby gaining public sanction for their vision. Trump, MAGA, and conservatives cannot undo decades of this on the basis of one election victory, even when the GOP nominee won every swing state. They must push to build a durable coalition that on occasion can win supermajority victories, as Democrats do time and time again.

 

Judicial rulings frustrate many now, but trying to overcome that today will destroy our opportunity to turn the country around. Better to uphold the rule of law and force the left to face the voters.