The Courts and the Street

Judges can serve as critical bulwarks against an authoritarian turn. But in the end, only grassroots organizing and a mass popular movement can truly withstand authoritarianism.

In mid-March, Trump surprised his political opponents by rejecting a series of last-minute presidential pardons signed by his predecessor Joe Biden, including those, in Trump’s menacing language, offered to “the Unselect Committee of Political Thugs, and many others.”

Posting on Truth Social, Trump declared that Biden’s pardons were “VOID, VACANT, AND OF NO FURTHER FORCE OF EFFECT.” As his presidency drew to a close, Biden offered a series of pardons, starting on December 1st with his son, Hunter Biden, and ending in a last-minute series of clemencies on January 19th, including Anthony Fauci, General Mark Miller, members of Congress serving on the Select Committee investigating the January 6 Attack, as well as members of Biden’s immediate family.

It was unclear which of Biden’s multiple pardoning rounds Trump was calling into question. But in so doing, Trump was undermining an executive practice enshrined in the Constitution and first used by George Washington in his 1795 amnesty for two participants in the Whiskey Rebellion who had been sentenced to death by hanging. Trump’s no doubt legally flawed argument hinged on the idea that Biden’s pardons were invalid because they “were done by Autopen,” a technology used by multiple presidents, allowing documents to be signed “auomatically” without the person’s physical presence. “In other words,” Trump wrote on Truth Social, “Joe Biden did not sign them but, more importantly, he did not know anything about them!”.

The “Autopen argument” drew on a Heritage Foundation report by The Oversight Project, published a week earlier and publicized by Fox News, though its roots appear to go back to 2011 when Republicans challenged Obama’s use of the device to sign legislation. “WHOEVER CONTROLLED THE AUTOPEN CONTROLLED THE PRESIDENCY,” the Heritage Foundation’s project announced on X. “We gathered every document we could find with Biden's signature over the course of his presidency. All used the same autopen signature except for the the [sic] announcement that the former President was dropping out of the race last year.” A week later, this claim was absorbed by the U.S. president. In a further Truth Social post, he announced: “The person who was the real President during the Biden years was the person who controlled the Autopen!”.

The Autopen argument seemed to allow Trump to accomplish three things: First, to further debase the reputation of the Biden presidency and reinforce the idea of a doddering 46th absentee president, one not in command of himself or the country, and subject to (potentially nefarious) external influences. Second, to send a signal to Trump’s political enemies that they might find themselves the targets of (political) prosecution (or rather, persecution). Sans protective pardons, Trump could instruct the Justice Department to begin investigating people like Fauci, which would likely be met with acclaim by Trump’s MAGA base. But third, the Autopen argument also seemed to allow Trump to preserve intact the presidential power to grant clemency, which might come in handy later in Trump’s second term, since Trump’s claims focused on a limited episode, not on the wholesale power to pardon as such.

But at least Trump recognized that the final word on Biden’s late-stage pardons would not be his:

“It’s not my decision — that’ll be up to a court — but I would say that they’re null and void, because I’m sure Biden didn’t have any idea that it was taking place, and somebody was using an auto pen to sign off and to give pardons,” Trump told reporters aboard Air Force One on Sunday night.

So how likely is it that Trump’s charge would come into effect? Not very. As Bloomberg notes, a 2024 federal appeals court ruled that a “pardon doesn’t even have to be in writing.” The idea that an Autopen signature (and all seven Biden “warrants” from January 19th 2025 appear to bear the same, identical signature) would invalidate highly publicized pardons is legally laughable.

The Executive’s Privilege

In the February 2024 case referenced by Bloomberg, Rosemond v. Hudgins, a convicted drug trafficker, James Rosemond, serving multiple life sentences, claimed that Trump had granted him clemency in the course of several phone calls with his supporters: Trump had allegedly said that he “want[ed] to do this,” that he “want[ed] this expedited right away,” and finally that he wanted to “get this guy home for Christmas.” There was, however, nothing in writing, the Court of Appeals judge noted—no “warrant of commutation relating to Rosemond.” Rosemond’s lawyers claimed there didn’t have to be: The president’s verbal expression of clemency was enough.

Here the court agreed in principle (though without any practical consequences for Rosemond), and reaffirmed two basic ideas underpinning presidential pardons:

First, absent a constitutional constraint, the President's ability to commute a sentence is not subject to any further formal limits or requirements. Second, the Judiciary's role in the matter of executive commutations is very sharply circumscribed.

From the first principle, the court declared that pardons don’t even have to be written down; if asked whether pardons must be in writing, “the answer is undoubtedly no. The plain language of the Constitution imposes no such limit.”

From the second principle, namely that a presidential pardon belongs to the president and not the courts—“it is the President's prerogative to exercise it, not the Judiciary’s”—the court affirmed its reluctance to intervene:

We have no authority to fill the gap between President Trump's alleged desire to commute Rosemond's sentence on December 18 and his apparent failure to follow through with that intent in the final month of his presidency

Considering this ruling, we can see what thin ice Trump is on, legally speaking, in trying to overturn the Biden pardons. The exact nature of the signature, whether manually produced or the result of an Autopen, seems wholly immaterial; if it doesn’t even matter whether the pardons are written down, why should the exact nature of the signature matter? Moreover, a court is highly unlikely to overturn a presidential pardon once proffered, precisely because the power to pardon resides with the president, not the courts, albeit with some limitations (e.g. presidents don’t have the power to commute violations of state law; pardons are backward-looking and cannot “immunize future criminal conduct”). Trump’s understanding of the law surrounding presidential pardons appears slipshod.

Broadcasting and Battling

In this case, then, the courts are likely to “hold the line” against Trump’s inherent authoritarian instincts, and he is unlikely to be able to overturn Biden’s pardons. While Trump may still pursue a legal witch hunt against these (real or perceived) political opponents, he will not be able to do so through this route.

But as is so often the case with Trump, the messaging effect is far more important than the actual—in this case, legal—outcome. It signals his willingness to persecute his enemies and relays his tireless efforts to appease the MAGA base. Trump likely knows he won’t get anywhere on the Biden pardons. But he received tens of thousands of likes on social media, and reinforced the narrative of a weak Democratic predecessor. More importantly, the “Autopen affair” also joins a number of other actions that are wearing down a key bulwark against Trump’s incipient fascist authoritarianism: the court system.

Over the weekend, the White House ordered the deportation of hundreds of alleged Venezuelan gang members to an El Salvador prison, run by the crypto-fascist government of Nayib Bukele. The courts tried to intervene, but it was too little, too late. As the BBC reported, “A federal judge's order prevented the Trump administration from invoking a centuries-old wartime law to justify some of the deportations, but the flights had already departed.” Or as Bukele himself wrote tauntingly on X, “Oopsie… Too late 😂.”

It’s clear that the Trump administration, which in recent weeks has attacked higher education, now has its sights set on the legal system.

Bulwarks—or Compliance?

Both the Autopen affair and El Salvadorean deportation raise the deeper question of whether the courts are a reliable bulwark against Trumpist authoritarianism. Much now seems to hang on the courts and their capacity to resist Trump’s agenda.

Liberal democrats have long placed their faith in the rules-based order of the Rechstaat. For centuries, (lowercase-r) republicanism has emphasized the importance of the “rule of law” and, relatedly, the courts’ capacity to withstand a winner-takes-all politics, ensure procedural fairness, protect vulnerable minorities, and uphold legal rights against an overweening executive. Liberal democrats tend to see judges as buffers against strongmen and authoritarians of all stripes; and there can be little doubt that courts have, historically, played an important role in defending and upholding the rule of law. Just as fascists love to attack college campuses for their role as sites of ideological resistance, the courts are an important source of procedural resistance, threatening to obstruct executive authority by throwing grit into the machinery of power, which makes them a privileged target of authoritarian action.

But courts, being among the favorite targets of authoritarians, are also flimsy institutions, and they are receptive to the wider social context in which they act. The GOP and Trump have already packed the Supreme Court with right-wing justices: Republican appointees are now in a 6-3 majority. At lower levels, Trump appointed more than 200 federal judges in his first term, “including nearly as many powerful federal appeals court judges in four years as Barack Obama appointed in eight.” State supreme courts have also been “flipped” by Republicans through a decades-long process. Importantly, too, courts and the judges that lead them are embedded in a broader societal and political context. Courts are sites of ideological contestation and action, and are swayed by that context, over above who appointed whom to serve on the judicial bench.

In a landmark 1957 article, the political scientist Robert Dahl noted that the United States Supreme Court was both a legal and a political institution. By this Dahl meant, among other things, that the Court, except for “short-lived transitional periods,” would “inevitably [be] a part of the dominant national alliance” and “suppor[t] the major policies of the alliance.” Crucially, Dahl observes, “by itself, the Court is almost powerless to affect the course of national policy.” Meanwhile, in his (admittedly controversial) 1991 book, Hollow Hope, Gerald Rosenberg questioned whether the U.S. Supreme Court could be a reliable source of progressive social change. And as the critical legal studies scholar and Harvard professor Roberto M. Unger observed, while many affirm the “institutional competence” of the courts, there are good reasons to question it:

Most of what courts actually do—brokering small deals against a background of disputed facts and uncontested though vaguely conceived rights and supervising the police and prosecutors as they decide which violent members of the underclass to imprison, hardly fits those conceptions of institutional competence.

That is not to say, again, that courts cannot uphold the rule of law in crucial ways. Moreover, whether courts can withstand a wider authoritarian turn is a complex, and ultimately empirical, question. In the book, Can Courts be Bulwarks of Democracy?, Jeffrey Staton and his colleagues argue that U.S. democracy can likely be safeguarded by the courts, particularly if judges are willing to bear the risk of “non-compliance” and that which is “politically unpopular,” and if, conversely, civil society punishes political leaders who themselves exhibit non-compliance with court decisions. Of all the factors favoring courts upholding liberal democracy, the “presence of brave judges who are willing to exercise their powers is the most likely one to be met,” they write. The authors also suggest a strong civil society, “committed to advocating on behalf of courts, their judges, and judicial independence,” will likely contribute to standing the test of executive overreach.

Probing the Legal Order

No doubt Trump and his administration are testing the courts now, probing for weaknesses to exploit. To undermine the courts further through rhetoric or analysis would, in some ways, be to do the Trump administration's bidding. Still, the warnings offered by such intellectual movements as the Critical Legal Studies school against an overly exuberant faith in the court system to effect political change—or resist its reactionary subversion—remain salutary.

At the end of the day, courts are to some degree beholden to executive authority. The U.S. president wields astonishing power to change facts on the ground, often well before courts can react and respond, as illustrated by the recent El Salvador debacle: The New York Times rightly described the deportation and subsequent dismissal of a federal judge’s ruling as the Trump administration moving “one large step closer to a constitutional showdown with the judicial branch of government.” Trump is practically trolling the court system, goading it into provocation and a confrontation he likely believes he stands a good chance of winning.

But while many are right to continue to place their hope in the power of the courts to dampen Trump’s authoritarianism, only a mass mobilization of civil society at the grassroots level can shore up the courts and the liberal-democratic rights they, at their best, uphold. As jurisprudential theory and the sociology of law suggest, judges are responsive to ideological pressures, both from above—and below.

Judges are also unlikely to be able to go it alone. Only a popular mass movement, resisting both the dehumanization of out-groups and the extreme concentration of power in the hands of a single leader, can ensure the survival of liberal-democratic practices—for a democracy without people out in the streets, protesting and organizing, is likely to be a flimsy thing indeed.