The Judiciary

Courts are necessary to wage culture wars and create a climate of fear among dissidents — the sine quo non for a dictatorship. But to move from a proto-dictator to a real one, Trump would need full loyalty from the judiciary. That’s easier said than done in America, where the judicial system is designed to put limits on the executive and judges have long tenures. Trump may have shifted the balance of power on the Supreme Court and appointed more than 200 federal judges to reshape the federal judiciary, including an impressive number of appointments to the powerful appeals court and district courts. That means
by the end of his term,
over a quarter of active judges were Trump appointees.

But that’s not so unusual. The courts have long been an ideological battleground in U.S. politics and the highest number of judicial appointments in modern times
came during Ronald Reagan’s presidency — though it still wasn’t enough to create a permanent right-wing governance structure. Moreover, not all Trump appointees have
ruled in ways Donald Trump wanted, even though many emerged from some type of a Republican vetting process through an alliance with Senate Majority Leader Mitch McConnell.

Based on examples from Hungary, Poland and Turkey, we can safely say that Trump’s real problem will not be the loyalty or the conservative credentials of his judicial appointees but the presence of others — the non-Trumpians. Out of 800-something federal judges (numbers vary depending on vacancies), only a quarter have been appointed by Trump, leaving hundreds of others within the system. Meanwhile, the Biden administration has been
in a race to shape the courts by filling vacancies and pushing ahead with confirmations of their own, non-Trumpy judges.

In a country that prides itself on checks and balances, “cleaning up” the hundreds of active judges and prosecutors who are not loyal to him would present a challenge for any burgeoning autocrat, since judges have long tenures and plenty of independence. The U.S. Constitution says federal judges may hold their position “during good behavior” — meaning, lifelong. This makes it harder to push around or penalize unruly justices even when their verdicts go against the wishes of the White House.

What Trump would really need to bring the judiciary to heel is a centralized administrative structure, as in Turkey, Hungary and elsewhere, where he could easily reassign uncooperative judges to different courts, take punitive action, or relocate them to different cities — all common practices in Turkey. Instead, the U.S. has overlapping judicial systems and once an appointment is made, it is harder to fully control a judge. U.S. judges also are well compensated, and, in some states, directly elected, further increasing their independence.

All this makes the full control of the U.S. judiciary a long-term, even a multi-generational challenge for an aspiring autocrat. Trump could try to do what populists elsewhere have tried, namely, changing the rules of the game. Since 2010, Orban and his Fidesz Party have
incrementally dismantled the independence of the judiciary by forcing judges into retirement, creating an alternative court system and expanding the powers of the Minister of Justice over the judges. Law and Justice in Poland
tried to reshape the courts through similar methods after it regained power in 2015, including lowering the retirement age and expanding the powers of a national body that appoints judges. It used government-controlled media to target judges and made courts a core element of its culture wars. But at each step of the way, Law and Justice met significant pushback and eventually
lost power last October.

The judiciary was a big headache for Erdogan as well. In 2006, the Turkish government’s attempts to reshape the justice system and break the monopoly of secularists met with enormous social pushback, forcing the government to hold referendums on judiciary reforms in 2007 and 2010. But what finally gave Erdogan the control he wanted was his declaration of emergency presidential powers after a failed coup attempt in 2016 that allowed the president or Turkish Justice Department the right to dismiss or move judges at will.

Can Trump claim similar emergency powers? Not without first gaining institutional and social consensus. Even in Turkey, it took a bloody military coup attempt for Erdogan to assume the type of powers he wanted. Trump would need a dramatic event of similar nature that would serve as a force-majeure and convince U.S. society that it would be OK for the president to take control of the judiciary.

Of course, Trump has other options that are legally available but politically difficult. Surprisingly, the U.S. Constitution does not stipulate the number of judges at the Supreme and District courts. If he has the support of Congress, Trump could pack the courts by expanding the number of judges on federal benches and the Supreme Court. But such a move would be too alarming and unlikely to be fully backed by Congress or the Republican establishment. President Franklin D. Roosevelt tried to pack the courts but failed. It is hard to imagine Trump’s Justice Department being able to build in four more years the social and institutional consensus to achieve what FDR failed to do after the New Deal.