The Legal Battle Over Liberal Democracy

With heightened political confrontations, the role of the judiciary as the guardian of liberal democracy faces growing scrutiny in the United States. The Trump administration's revolutionary push to dismantle the "deep state" raises critical questions about the interplay between executive power and judicial oversight. America can draw lessons from Europe; both its history in the twentieth century and in the recent battle over the rule of law in states like Hungary and Poland. But the American people must not put all its confidence in the judiciary. Without support from the people and its politicians, liberal democracy and the rule of law is at peril.

Ten years ago I wrote Judges Against Justice, a book that explored concrete situations in which judges are faced with a legislature and an executive that consciously and systematically discard the ideals of the rule of law. Little did I know that only 10 years later, the study would be relevant for an analysis of developments in the United States. Using the examples of Nazi Germany and western European countries under the regime’s control during World War II, South Africa under apartheid, and military dictatorships in Argentina, Brazil, and Chile, the book examined the endurance of the rule of law when under attack.

Methods of undermining the rule of law

Authoritarian rulers have used appointment of sympathetic judges through purges of the judiciary and court packing, reorganization of the court system, and the establishment of special courts to compel the submission of judges. Another important measure deployed by these regimes was to limit access to the courts by limiting the scope of the competence of the courts to review acts and decisions by organs and agencies of the state.  When handpicking judges and limiting the scope of judicial review did not suffice, there were other means at their disposal. Authoritarian regimes rely on a wide range of mechanisms to convince, persuade, and coerce judges to apply their legal minds to the benefit of the regime. Finally, an authoritarian regime will often just plainly disregard legal rulings that run contrary to their policy.

Taken together, these measures constitute a script or a textbook for rulers who aim to undermine the rule of law. Measures taken by the Trump administration seem to be straight out of such a script. They seek to limit the scope of judicial review over measures enacted by or at the order of the president, they handpick judges and threaten to remove others, they attack and harass individual judges, and they disregard rulings that hamper the execution of their policies.

Limiting the jurisdiction of the judiciary

Trump’s post of February 15 on Truth Social and on X, “He who saves his Country does not violate any Law,” is well known. This has by observers been taken as a claim of power to override legal limits. A few days earlier, Vice President Vance had posted to his account on X that “Judges aren’t allowed to control the executive’s legitimate power.”

Trump repeated this view after a judge ordered the Trump administration to cease use of an obscure wartime law to deport Venezuelans without a hearing, saying that any deportation flights that had departed the United States needed to return. The case turned into a legal battle over whether the administration had complied with this order or not, as two planes with deportees landed in El Salvador well after the judge had issued his order.

Reacting to inquiries by the judge, Trump posted on his social media: “If a President doesn’t have the right to throw murderers, and other criminals, out of our Country because a Radical Left Lunatic Judge wants to assume the role of President, then our Country is in very big trouble, and destined to fail!”

The government keeps arguing that judges are overstepping their jurisdiction when they put a check on executive powers. Constitutional lawyers of the right are arguing the doctrine of “departmentalism—the Founders’ view that the officers of each branch of government have a duty to interpret the Constitution as they understand it.” Even decisions of the Supreme Court are not truly the final word on constitutional interpretation under this doctrine.

Selection of loyal judges – and deselection of the disloyal

Political appointment of judges is a well-established system of the United States federal order. Extensive research suggests that how judges are selected has significant implications for judicial independence and decision-making. Trump is well aware of that. The republicans managed by cleaver maneuver and luck to appoint three judges to the Supreme Court during  first presidency; Gorsuch, Kavanaugh and Barett.  Trump also extended the politization of appointments to the entire federal judiciary (Abel p. 218).

After a ruling that went against him, Trump blasted the judge, Jon S. Tigar, as a biased “Obama judge. This resulted in a rebuke from Chief Justice Roberts. In response, Trump tweeted on X that “you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” In the recent controversy over the deportation of Venezuelans, Trump denounced Judge James Boasberg as an Obama appointee.

The other side of the coin when it comes to the selection of loyal judges is the deselection of judges who oppose. In the same Truth Social post targeting Judge Boasberg, President Trump stated that the judge should be impeached. Republicans in Congress have announced plans to impeach several judges.  Beyond Boasberg, they’ve announced plans to impeach: Judge John McConnell, who halted the administration’s blanket funding freeze; Judge Amir Ali, who resumed foreign aid payments; Judge John Bates, who restored scrubbed online health data; and Judge Paul Engelmayer, who prevented Elon Musk from accessing Treasury Department payment systems.

Attacks and harassment

President Trump himself has chided and harassed individual judges on social media. His Truth Social post calls Judge Boasberg a “Radical Left Lunatic Judge”. He has called Judge Tanya Chutkan in Washington, D.C.  “the most evil person” and Judge Arthur Engoron of the New York Supreme Court a “political hack.” Such public rebukes are dangerous as they incite and encourage threats and attacks on judges. Chief Justice Roberts addressed such attacks on judges in the 2024 Year End Report on the Federal Judiciary, mentioning (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments as ongoing threats to judicial independence.

Judges and prosecutors have repeatedly been facing threats of violence as they handle cases related to Trump. The voluntary Federal Judges Association has issued a statement regarding a rise in criticism, threats and violence aimed at members of the judiciary.  They state that “Irresponsible rhetoric shrouded in disinformation undermines the public’s confidence that our justice system can fulfill its constitutional duties.”  This underlines the seriousness of posting abuse of judges on social media by the leader of the administration.

Defiance of judgments

Judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees, Chief Justice Roberts states in the 2024 report. We have seen many instances of the Trump administration evading legal orders and even outright defiance. In many cases the administration finds legal sidesteps, such as claiming that they have reviewed cases of termination individually after a judge’s freeze order, that they have other legal basis for not fulfilling payments that have been ordered resumed and so on. The result is that many of the judicial restraining orders put on government measures have been without effect.

Towards the Dual State

The push for executive power and limiting  of the courts’ jurisdiction are reminiscent of what the German-American lawyer and political scientist Ernst Fraenkel in 1941 labelled the Dual State. The dual state is a mode of governance where tyranny expands and rules without a dismantling of the courts and with independent judges performing their functions as before.

Central to Fraenkel’s theory is the prevalence of what he called the normative state despite the rise of the political and oppressive prerogative state. By the prerogative state Fraenkel referred to the “governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees”, and by the normative state “an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions of the courts, and activities of the administrative agencies”.   Both existed simultaneously, but the normative state existed under the acquiescence of the prerogative state. The prerogative state defined its own limits and could overrule decisions made within the normative state.

This is the end of the rule of law. In the dual state, there are no limits to the powers of the government other than those it chooses to accept, with the pretense of government by the rule of law being upheld within the normative state. The Dual State is a theory that has been proven in many historical instances with well-functioning judiciaries, such as Italy, Germany, South Africa, Chile, Brazil, and Hungary.

The role of judges

Americans should be worrying about a coup, and presently the only thing that may prevent one is if judges stand up to Trump and civil society and enough members of Congress join. But is it enough? Judges often initially react to attempts by the executive to assert unlimited power. Unknown to many, this was even the case in Germany after the violent Nazis came to power. It is well known the judiciary was subdued and became the “horrible lawyers” in the words of the German author Ingo Müller.

What is less noticed was that in the beginning the new regime did meet with some opposition from the judiciary. A cause célèbre is the case of the Reichsgericht after the fire in the Reichstag on December 23, 1933, where four of the five accused were acquitted by the court due to the lack of evidence. The four were known communists, and Hitler and Göring were expecting a show trial to do away with political opponents.

The Prussian Administrative Court held onto the principle of legality for some time by interpreting both old laws and laws passed by the Nazi regime narrowly, thereby curbing the power of the authorities. The Prussian Administrative Court maintained this line throughout the 1930s and until the court was abolished in 1938 and replaced with a Reich Administrative Court.

Initially, prosecutors and judges reacted against the misuse of power and the atrocities in the Concentration Camps. In 1935, however, Hitler confirmed that the camps could operate outside of the law, pardoning the SS men. This brought an end to legal proceedings in regular courts against operations in the camps.

In the first years, there were several instances where judges refused to apply the Nazi anti-Semitic worldview and continued to treat Jews as ordinary legal subjects. This even prevailed as late as in 1941 in the famous Berlin coffee case. Willi Seidel, a judge of one of Berlin’s county courts, refused to fine 500 Jews who had tried to collect coffee after the city authorities had announced extra coffee rations for the population. He was expelled from the Party and moved from the criminal to the civil bench due to his “lack in political attitude through a serious misconception of the Jewish issue.”

It is crucial to American democracy that judges keep up their resistance against the expansion of presidential powers. As the battle intensifies, more severe attacks on judges and the judiciary must be expected. The fear that judicial orders will be circumvented or disregarded may lead judges to exercise undue caution in challenging the president. A Supreme Court majority sympathetic to Trump’s agenda may effectively silence the rest of the judiciary.

The Spirit of Liberty

The future of liberal democracy in the United States is at stake. Judges are an important line of defense, and their actions in the near future will be decisive for the future of the United States. This may require courage as the pressure on the judiciary and on individual judges increases. The hope is that there are enough heroic judges in the federal judiciary.

But judges cannot win the battle alone. In the spirit of the brave judges of Poland, they must unite. The recent initiative from the federal judiciary creating a task force is encouraging.  The legal profession and the bar must engage in support of the judiciary and the rule of law. The ABA issued a statement several weeks ago. In addition, lawyers should mobilize in support of law firms targeted by Trump’ sanctions, and meet them with a collective boycott of work for the federal government. A free legal profession, without interference by the government, is essential to the rule of law.

What one should really like to see is people taking to the streets in support of judges. This might seem a long shot, but as the enduring protests in Israel have shown, it is not unthinkable. The Polish judges were supported in their battle by civil society organizations, along with people in the streets.

One is well advised to head the words of a former well-known American judge, Learned Hand, in his Spirit of Liberty speech of 1944:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Hans Petter Graver is professor of law at the University of Oslo, Norway. His fields are administrative law, sociology of law and legal ethics. He has written extensively in all these fields. His latest books are Valiant Judges, Iniquitous Law and Democracy and Lawlessness: The Penitentiary Laws and Civil Disobedience in Norway 1928-1931. He is member of Academia Europeae.

 

Environmental Justice is Not About “Them.” It’s About All of Us.

By Sharmila L. Murthy, Jalonne L. White-Newsome, Marianne Engelman-Lado, Natasha DeJarnett, Shelby Benz, Aruni Ranaweera, Allison Rogers, and Christina Bowman

Imagine that the very air you breathe is so toxic it makes you sick. Or that your children suffer developmental delays because they are unknowingly exposed to lead through the water they drink or the paint in their homes. This is the reality that millions of Americans face every day—and it is what environmental justice is all about.

Through our prior efforts at the White House Office of Environmental Justice and the Environmental Protection Agency (EPA) Office of Environmental Justice and External Civil Rights, we worked hard to make the nation a cleaner and safer place for everyone. Now, the Trump Administration is taking a wrecking ball to important longstanding environmental and health protections. It is shuttering federal offices across the country that serve overburdened communities. It is trying to fire longtime public servants who help ensure that our air, water, and neighborhoods are safe. The Trump Administration is giving polluters free reign to pollute, which will raise health costs for all and cause pain across our nation. For political expediency, the Trump Administration is distorting the meaning of environmental justice.

Environmental justice means that all people—not just the privileged—should be able to breathe clean air, drink safe water, and live in an environment that is free from harmful pollution and chemical exposures. Regardless of who you are and where you live, you should be treated justly and be given the chance to have a say in government decision-making that impacts your health and environment.

The Trump Administration cannot stop the environmental justice movement. Over the last half-century, communities fighting for fairness and equal protection against pollution have galvanized this movement. In the 1980s, residents of Warren County, North Carolina protested and put their bodies on the line to stop the construction of a hazardous waste landfill in a Black neighborhood in one of the poorest counties in the state. In 2014, the nation watched in horror and mobilized as residents of Flint, Michigan learned that their drinking water was contaminated with lead after a state-appointed emergency manager switched the water supply from Detroit’s system to the Flint River.  Even today, residents displaced from Mossville, Louisiana suffer health consequences from the dozen or more industries that continue to surround their community. But, rather than try to improve the lives of people living near polluting facilities, the Trump Administration is dropping enforcement actions intended to protect people’s health. It is carelessly rolling back longstanding federal environmental and health advancements, jeopardizing the well-being of people across our nation.

Communities will no longer share in prosperity from federal investments that could expand infrastructure, produce jobs, build resilience to extreme weather events, and keep families healthy. The Trump Administration is dismantling the historic Justice40 Initiative, which sought to direct forty percent of the overall benefits of federal investments related to climate, energy, water, housing, transportation and other areas to disadvantaged communities. This will hurt communities in blue and red states. In fact, red states and GOP congressional districts have benefitted most from the largest investment in climate and clean energy in human history through the Inflation Reduction Act and the Bipartisan Infrastructure Law.

The public now has less access to important tools that allow you to understand the health of your community. The Trump Administration has taken down important datasets and mapping tools, like the Climate and Economic Justice Screening Tool and EPA’s EJScreen. The Trump Administration has also dismantled key research drivers, like the National Science and Technology Council’s Environmental Justice Subcommittee, which issued a groundbreaking report last year called the Environmental Justice Science, Data, and Research Plan.

We are now in an era of disinformation and disrespect for the rule of law and the basic tenets of democracy. The Trump Administration is destroying initiatives that sought to promote accountability and transparency, such as the Environmental Justice Scorecard, which provided the public with key information on agency progress towards health and environmental protection. The Administration has also sought to silence important expert voices on environmental health and protection by dissolving the White House Environmental Justice Advisory Council, which had been created in 2021, and the National Environmental Justice Advisory Council, which had provided recommendations to EPA since 1993.

We all now have work to do to keep our families and communities safe. Write to your elected representatives and let them know that you stand for greater health and environmental protections for all. Let your elected officials know that you do not support the Trump Administration’s dangerous agenda. Tell your state and local leaders to develop stronger laws, regulations and programs on environmental justice –- even using federal actions, such as the National Environmental Policy Act (NEPA) regulations, issued in May 2024, or Executive Order 14096 on Revitalizing Our Nation’s Commitment to Environmental Justice for All, signed in April 2023, as models for renewed action. Volunteer with your local environmental and environmental justice organizations. Be a champion for environmental justice.

Despite the Trump Administration’s rhetoric, environmental justice is not about “them.” It's about making sure no child is exposed to lead in water. It's about making sure that no family fears that the air they are breathing is poisoning them. It’s about all of us.

Marianne Engelman-Lado served as the Acting Principal Deputy Assistant Administrator of the Office of Environmental Justice and Civil Rights at EPA, among other roles. All the other authors worked at the White House Office of Environmental Justice during the Biden-Harris Administration under the leadership of then-Federal Chief Environmental Justice Officer, Dr. Jalonne L. White-Newsome. Sharmila L. Murthy served as Director for Environmental Justice; Dr. Natasha DeJarnett served as Deputy Director for Environmental Justice Data and Evaluation; Shelby Benz served as Special Assistant for Environmental Justice; Aruni Ranaweera is a graduate student at Harvard Kennedy School of Government who interned with the office; Allison Rogers served as Director for Environmental Justice Public Engagement; and Christina Bowman served as Deputy Director for Environmental Justice, and then as the Chief of Staff at the White House Office of Domestic Climate Policy.

 

 

Law School Deans Have a Moral Imperative

President Donald Trump's public targeting of law firms and universities that oppose him or disagree with him is a direct assault on the rule of law in the United States.

Over the weekend, Trump issued a memo directing the Justice Department to root out political opponents who use the law to challenge his actions. Trump’s memo is designed to intimidate lawyers who represent the administration’s legal and political opponents, so that Big Law will drop any challenges to Trump out of fear they will lose clients, and smaller firms will look at their balance sheets and turn elsewhere.

This weekend’s memo is part of a larger systematic effort. Trump’s first executive order targeting law firms barred the federal government from using Perkins Coie and suspended its attorneys' security clearance because—as the executive order explicitly stated—it represented political opponents. Trump issued a similar executive order targeting Covington & Burling because they provided legal assistance to Special Counsel Jack Smith. A third executive order was then issued targeting Paul Weiss for its association with two attorney who assisted investigations of Trump by Special Counsel Robert Mueller and Manhattan District Attorney Alvin Bragg, as well as representing parties suing January 6th insurrectionists. The most recent memo is designed to put government muscle and staffing behind his threats. All of these actions taken together are designed to turn rule by law into rule by a man.

Law school deans have a key role right now. They must clear their calendars, stop fundraising, stop meeting with students, get their lawyers ready, tell their Presidents that they are willing to be fired rather than stay silent, coordinate with each other, and come out with a strong and clear statement condemning the attack on the rule of law and refusing to capitulate to any demands from the administration that would undermine their institution’s academic freedom or the rule of law.

Individual tweets and email chain letters are frankly not that important or effective; institutions and those that lead them must speak up, and there is no more obvious institution than law schools and no leader more obvious than law school deans. Yet of the hundreds of law school deans in the country, I have counted only two--Georgetown Law Dean William Treanor and Berkeley Law Dean Erwin Chemerinksy--who have publicly denounced the administration’s actions.

But 99 percent of the roughly 200 or so law school deans in the U.S. have been conspicuously silent.

Trump’s intimidation campaign is working and, in the process, destroying the credibility of academic institutions and the legal profession.

Columbia agreed to the terms Trump set in his federal funding blackmail and are creating “oversight” for a disfavored academic department. Trump will not be President in four years, but Columbia has made it clear that it will bend to the will of power. Whether the new President is Republican or Democrat, Columbia has broadcast to the world that ideological oversight of academic research is something they will barter.

Paul Weiss, targeted because of its association with attorneys who worked on the investigations of Trump by Special Counsel Robert Mueller and the Manhattan District Attorney, agreed to abandon its internal diversity and inclusion policies and support his pet causes with $40 million in "pro bono" services.

At least in part because of Paul Weiss’s example, thousands of other lawyers and law firms are complying in advance, though we may not know their names. I have heard from one public defender that the law firms who once would say yes to pro bono federal death penalty cases are now turning those cases away.

It should go without saying that the rule of law depends on the ability of legal professionals to represent clients without retribution and on universities to be independent institutions, not tools of the most recently elected President.

Trump’s chilling message to the legal community about the potential consequences of representing clients the President does not like or to universities about teaching ideas the President does not agree with is awful and authoritarian for sure. But more chilling is the silence his actions have been met with; we tacitly accept the President's terms. This is not a court of law, where one is innocent unless proven guilty, and there is a right to remain silent; this is the court of public life, where silence is itself immoral.

Georgetown Law's Dean William Treanor exemplified leadership by rejecting a federal prosecutor's warning to change the language and policies of Georgetown Law, holding up the First Amendment and Ignatian principles against a blatant attempt at blackmail. Berkeley Law Dean Erwin Chemerinksy also exemplified this leadership by writing in the New York Review of Books about how Trump’s Columbia threats were unconstitutional and dangerous. Obviously, law school deans understand the nature of the attack, and that it is more than a threat; it is the destruction of the rule of law itself.

But most are choosing to keep silent, likely out of fear that retribution will be visited on their students or their university. I believe their care is serious, and their love for their universities is genuine, but at some point—and we've passed that point—the obligation has to be to law and academic independence.

Students should pressure their deans. Faculty should pressure their deans. Alumni should call their deans. Reporters should ask deans questions at public events. The obligation to the rule of law is more fundamental than the obligation to any individual institution, and the human cost of living in a society in which law is available to those who are friends to power, and dare not criticize it, is enormous.

If law school deans will not speak up, how can they expect law firms to speak up? How can they expect Big Law not to keep making corrupt deals? How can they expect plaintiffs' lawyers to be brave? How can they expect nonprofits, terrified of retribution, risk getting their tax status investigated? How can they expect businesses to speak up, when they risk retribution that would damage all their employees? Do law school deans plan to teach students that law is just a trade and not a solemn obligation?

When there is silence, it will be hard not to infer that the Law Schools are obeying quietly, shifting resources, directing students towards firms that don’t irritate Elon Musk. Regardless of what they are actually doing, they are leading by example, and letting students know that when their integrity, professionalism, and ethics as a lawyer are challenged by the politically powerful, it is better not to take a risk.

Law school deans across the nation must collectively affirm their commitment to upholding the rule of law and protecting the autonomy of educational institutions. They need to defend their own institutions as places worth saving but also make possible the things that thrilled their hearts when they were young lawyers–free speech and the vision that all people are treated the same under law, regardless of their connections or politics.

And if Trump does respond by trying to pull funding, all of us need to be there ready to pull the oars to stop him. If law school deans have to quit to feel comfortable speaking out, we should be ready to support them. If they are forced out, we have to be ready to stand with them.

 

Courts are Pumping the Brakes on Trump’s Anti-Trans Crusade

In response to the Trump administration’s efforts to deny the existence of transgender people and erase them from public life, many brave transgender people and their allies went to court. Those lawsuits are already starting to pay dividends as judges recognize what is all too plain: Trump’s efforts to scapegoat transgender people are rooted in nothing more than a discriminatory bare desire to harm and, if implemented, will inflict irreparable injury on transgender people.

Earlier this month, a federal court in Maryland enjoined the Trump administration’s attempts to revoke federal funding for any entity that provides gender-affirming care to people under the age of nineteen. In addition to concluding that the President lacked the unilateral authority to impose new conditions on congressionally-approved funding and therefore usurped Congress’s power, the court concluded that the attempt to ban gender-affirming care discriminated against people on the basis of their transgender status and likely violated the equal protection clause as a result. The court observed that denying children needed medical care would not help the children, as the government conjectured, but instead would cause them to suffer.

The Maryland decision builds off one out of Washington. In Washington v. Trump, another federal court concluded that the funding revocation related to gender-affirming care was both beyond the scope of Trump’s power and infringed individual freedom. The court pulled no punches, concluding that the government was “deny[ing] the very existence of transgender people and instead seek[ing] to erase them from the federal vocabulary altogether and eliminate medical care for gender dysphoria at federally funded medical institutions.” As the Supreme Court has recognized, such “[a] bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In a series of cases filed by incarcerated transgender people, another federal court enjoined Trump’s order that all federal inmates be housed according to their sex assigned at birth (what the order refers to as their purportedly binary “immutable biological classification as either male or female”) and denied critical medical care. The Reagan-appointed judge reasoned that the plaintiffs were likely to succeed on their Eighth Amendment claims for deliberate indifference because housing plaintiffs in a facility inconsistent with their gender identity would exacerbate their gender dysphoria, as would denying them their medical care. This, the court concluded, would result in irreparable harm to the plaintiffs justifying the injunction.

In one of the cases challenging the Trump administration’s effort to ban transgender people from serving in the military, the presiding judge gave an unvarnished assessment of the Trump administration’s discrimination during a hearing. According to Judge Ana C. Reyes, the animus motivating the trans military ban is in the very text of the ban itself. The Executive Order’s text calls all trans people selfish liars: “A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” Judge Reyes suggested that calling “an entire category of people dishonest, dishonorable, undisciplined, immodest” was evidence of unconstitutional animus, particularly when talking about “people who have taken an oath to defend this country, people who have been under fire, people who have received medals for taking fire for this country.” Consequently, Judge Reyes granted a preliminary injunction against the military ban, concluding that the ban “is soaked in animus and dripping with pretext. Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact,” while also concluding that the ban was an improper form of sex discrimination.

The reasoning of these courts builds off decades of jurisprudence protecting transgender people from intentional discrimination—including the Supreme Court’s own decision in Bostock v. Clayton County, protecting transgender people from employment discrimination under Title VII of the Civil Rights Act of 1964.

Of course, there is a long road ahead and lower courts have yet to reach decisions in several pending cases regarding the Trump administration’s anti-transgender orders, including the ban on passports and participation in women’s sports. And there is no guarantee that the current Supreme Court will ultimately agree that the anti-trans executive orders are just that—anti-trans. But early indications suggest that federal courts are going to be an import bulwark—even if not ultimately a panacea—for protecting transgender rights and recognizing the humanity of transgender lives.

Autocratic Assault on the Rule of Law in State Government: North Carolina

It is no secret we have seen a growing trend of autocratic regimes manipulating democratic institutions to assume lasting, undemocratic control over governments. One of the more recent autocratic takeovers of a formally democratic government was in Hungary by Viktor Orban. Others include Russia’s Vladimir Putin, Turkey’s Recep Tayyip Erdoğan, and Venezuela’s Nicolás Maduro. These individuals have taken the reigns of their national government with the help of complicit legislatures and judiciaries. As we have recently learned, these methods are not limited to taking control of federal governments.

We now know autocratic control can be exerted over a state government and without taking direct control of its executive branch. In the United States, we are seeing this through extreme state partisan gerrymandering. With blessings from the U.S. Supreme Court, North Carolina has become the poster child for shifting power from government for the people by the people — democracy — to government for the few by the few — autocracy.

The Legislature Does Its Part: Extreme Partisan Gerrymandering

The process of redistricting and gerrymandering has been well documented in North Carolina, including as it relates to its most recent congressional and state legislative district maps. North Carolina went from one of the most fairly redistricted states in the country to one of the least fairly overnight because its Republican-controlled legislature was willing to grab power through extreme gerrymandering and a party-friendly state supreme court was willing to support it. This extreme gerrymandering was achieved to the detriment of the voting rights of the electorate.

In the 1990s and 2000s, North Carolina state legislative districts were drawn in a manner that led to control of the statehouse changing parties fairly regularly. But since 2010, Republicans have consistently controlled the statehouse and, heading into the 2024 election, Republicans controlled 72 of 120 state house seats while controlling 29 of 50 state senate seats. Partisan gerrymandering created a political environment which allowed autocracy over democracy. No governor could stop the Republicans as they maintained a three-fifths supermajority over any gubernatorial veto in both houses.

At the national level, gerrymandering gave Republicans control of the nation’s House of Representatives. As North Carolina’s former Congressman, Democrat Wiley Nickel put it, the “process [of gerrymandering] has reshaped the balance of power in Washington D.C., costing Democrats control of the U.S. House of Representatives.” Statewide, the North Carolina electorate voted evenly, with fifty percent of the vote going to Democrats running for the U.S. House of Representatives and fifty percent to Republicans running for the house. This should have meant a close to even split of the 14 House seats apportioned to North Carolina, but the Republican controlled state legislature’s gerrymandering resulted in sending 11 Republicans to Washington while only sending three Democrats.

Removing Executive Checks and Balances

In this last election cycle, North Carolina elected a Democratic governor, lieutenant governor, secretary of state, and attorney general, while electing Republicans for other offices in the state’s executive branch, such as treasurer, auditor, and commissioner labor. The electorate also broke the legislative super-majority Republicans had held in the statehouse by one vote and nearly won several other seats in closely contested races, a sign the state is moving left. Recognizing the democratic power shift about to occur at the new term, the Republicans — who still maintained a super-majority before the new General Assembly could be sworn in — doubled-down on their efforts to undemocratically retain power into the future.

Republicans passed a hurricane relief bill that also stripped the Governor of executive authority including the power to appoint the State Board of Elections (transferring it to the state auditor who is now a Republican); limited the governor’s authority to fill Court of Appeals and Supreme Court vacancies; and, shortened the time to count provisional and absentee ballots to a point where all validly cast votes may not be counted. This was in addition to another bill removing the Governor’s ability to name his own commander of the state highway patrol effectively stymying his executive power to faithfully execute the laws of the state. The state highway patrol commander would effectively be unaccountable and there would be no executive chain of command for the Governor during a crisis.

Next, in the same hurricane relief bill, the Republican controlled legislature stripped the Attorney General of the power to challenge any law passed by the General Assembly effectively giving the legislature carte blanche law making ability. So, despite an electorate that appears to be moving left despite gerrymandering, Republicans continue with various power grabs which eat away at the rule of law and re-enforce autocratic government.

Stripping Citizen Voting Rights

According to the conservative Election Integrity Project, election integrity is an environment where, “all eligible American citizens are able to cast their vote.” And yet, a North Carolina Republican candidate for state supreme court justice is trying to stop that from happening by challenging in state court over 63,000 North Carolinian votes validly cast by real North Carolinians (not fraudsters), after failed challenges by Republicans before the state election board. These votes are not just the votes of Democrats but of Independents and Republicans, too.

Because the challenge does not involve fraud, by his actions the candidate is saying to eligible North Carolinian citizens, “Your votes don’t count. You don’t count.” This is a bizarre, harmful course of action not least of all because this is a person seeking to be a justice on the highest court in the state. To be a judge, it would seem, should at least require “good judgment” and a sense of “justice,” two characteristics this sore loser is not demonstrating.  Yet, the attack on the votes of real fellow North Carolinians continues with no protest from state Republican leadership.

Perhaps even more distressing, there is real likelihood that the five-to-two Republican-controlled state supreme court (with current Democratic Justice Allison Riggs recusing herself) could eventually rule to overturn this election in what would be a nakedly partisan power grab. Since judicial terms are eight years, this might push back any possibility of Democratic control over the court and the legislature another eight years despite voting results indicating a strong move to the left.

What This All Means

The foundation of the rule of law is under attack even at the state level.

North Carolina is a blueprint for how to get it done. There is a process one political party is pursuing in North Carolina whereby (much like Hungary and other autocracies) they are dismantling the rule of law by severely weakening or eliminating state government’s checks and balances and violating individual voting rights by gerrymandering or tossing validly cast votes with no evidence of fraud.

The state’s system of government — a democracy — cannot survive in an environment where one branch of government strips the power away from another branch to put its own policies into practice with no chance at compromise, or, through gerrymandering, tips the voting scales in its favor, defying the will of the people. That’s an autocracy and one ‘The Founders’ reviled by virtue of the government they created.

James "Jim" Saranteas is a practicing attorney of 25 years with experience at the trial and appellate levels in civil litigation. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. Saranteas assists Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

Doomed to Repeat

In 1951, a member of the Women’s Auxiliary Air Force who had been discharged for being gay wrote to the American Civil Liberties Union:

“[N]obody asked Squadron Commander about my character, nobody asked my work if I did my work well. (They, by the way, when I asked them for a recommendation for a civilian job, told me to write my own if I was in a way displeased with theirs-they recommended me without qualification)[.] To all this no attention was paid. To Washington, I was a non-entity with a homosexual contact. I ask you, for all those girls left, is this fair?-is it in keeping with the principles we shout so loud? How efficient can our armed forces be, with this sort of psychological warfare raging within? As an individual, I'm powerless; as an organization, can you help them?”

This letter, begging for help, was sent at a time during which witch hunts against lesbian women within the United States military were reaching an all-time high. The ACLU at the time unfortunately refused to provide the legal assistance requested, perhaps in part because of the chilling effect caused by anti-gay policies backed by the U.S. military and federal government.

Over seventy years later, with the recent chipping away of programs and policies designed to ensure the full inclusion of LGBTQ+ service members and federal workers, it is more important than ever that we acknowledge and grapple with the history of discrimination during the McCarthy era. Only by understanding the past can we work to ensure a future that avoids its failures and safeguards everyone against discrimination.

The author of the letter, the fourth woman to be discharged from her station at Wright-Patterson for being gay, wrote that she knew the women she’d left behind lived “in constant terror of the telephone.” Service members who were targeted for discharge because they were suspected of being gay often received discriminatory abuse while awaiting discharge. One individual interviewed for the book Coming Out Under Fire: The History of Gay Men and Women In World War Two recalled being forced to eat out of trash cans and facing sexual harassment at the hands of guards while being held at a brig in San Francisco. Such brigs that were often referred to as “queer stockades.”

Once discharged, these service members were ineligible for typical veteran benefits, and because discharge records were public, it was difficult for these and other similarly discharged service members to find employment outside of the armed forces.

The fear LGBTQ+ service members during the 1940s and 1950s carried echoes of the fears current transgender service members express in the face of recent policy changes. While a U.S. judge recently requested that six transgender service members who filed suit to stop the new policy from being implemented not be removed prior to court proceedings, it is unclear what the future holds for LGBTQ+ service members across the United States.

A sense of fear and paranoia was deeply woven throughout policy in the 1940s and 1950s. After World War II, new recruits were subjected to lectures expressing increasing hostility towards LGBTQ+ people, going so far as attempting to tie homosexuality to grisly murder cases involving women and children. The lectures would also point out that LGBTQ+ people, which they labeled as “dangerous sexual psychopaths,” had been discovered within the ranks of the military during the war and were promptly discharged. While previously considered a moral threat, members of the LGBTQ+ community were more and more being characterized as a legitimate danger to country and national security, which ultimately led to the Lavender Scare and the Senate Hearings of the 1950s. In the absence of concrete evidence that gay service members acted in a way that was a genuine threat to security during and after World War II, lawmakers were tasked with building a defense of their discriminatory treatment based on hypotheticals and possibilities.

Without evidence that U.S. military efforts have been endangered by the presence of transgender service members, the rationale for exclusionary policy remains unclear.

The result of 1940s/1950s Senate hearings, investigations, and reports on gays in the military and federal government was catastrophic to not just gay individuals wishing to serve in the military, but those wishing to work in any government job at all. Discharge of gay government employees saw a sharp increase throughout the 1950s. Journalists such as Max Lerner for the New York Post drew a direct comparison between these discharges and the discharges of service members during World War II. This systemic ostracization laid the groundwork for subsequent modern policies like "Don't Ask, Don't Tell," which weaponized shame to force service members into the closet.

While recently unveiled policies appear to target transgender individuals, without reference to other queer identities, the broader implications of these policies remain uncertain. In an overhaul of federal websites, a Labor Department webpage with information about discrimination based on sexual orientation was completely erased. Additionally, within the text of an order on the topic of transgender individuals, there is language challenging the ruling of Bostock v. Clayton County, which prohibited not just discrimination based on gender identity, but discrimination based on sexual orientation as well. The text of the executive order regarding Bostock instructs the Attorney General to counsel agencies on correcting “the misapplication” of the Supreme Court’s rule to sex-based distinctions in agency activities. And while the intent of this directive is framed in language appearing to simply encourage clarity in policy implementation, advocates have raised concerns about the potential fallout of Bostock challenges.

As policy changes continue to emerge, it is vital to equip ourselves with a better understanding of the attacks, persecution, and discrimination members of the LGBTQ+ community have endured at the hands of our government throughout history. We must utilize that knowledge to ensure history doesn't repeat itself.

Military service and service to the federal government are a selfless sacrifice one makes to their country; a sacrifice that should ensure individuals are treated with dignity in service regardless of their sexual orientation or gender identity. While Defense Secretary Hegseth appears to be cognizant of this deserved dignity, going so far as to make mention of it in a recent memo disallowing the enlistment of transgender individuals into the military, the fact remains that recent policy changes signify a return to a dark chapter in America’s history of mistreating the LGBTQ+ community.