There are already dozens of lawsuits across the country aimed at halting Elon Musk’s assault on the government and other illegal actions pushed by President Donald Trump’s new administration.
“If the President really did this… I just don’t see how that’s not a dictatorship.”
These include challenges to the structure of Musk’s so-called Department of Government Efficiency, to his use of a private server at the Office of Personnel Management, to his alleged access to the nation’s most sensitive payment systems, and his dismantling of the US Agency for International Development. There are challenges to Trump’s firings of civil servants, inspectors general, and independent agency commissioners, as well as his executive orders targeting birthright citizenship and the rights of trangender individuals. There are suits challenging Trump’s unconstitutional attempt to withhold funds appropriated by Congress, and others seeking to protect career FBI agents who investigated January 6.
As the cases progress, and judges have issued orders halting overreach on the part of Musk and Trump, a growing chorus on the right are urging them to ignore the courts. For constitutional and government scholars, this would be a fundamental step from democracy toward autocracy.
“If the President really did this as a categorical matter—’I’m just going to ignore any order I don’t like’—that’s basically the end,” says Martin Redish, a constitutional law professor at Northwestern University’s Pritzker School of Law. “I just don’t see how that’s not a dictatorship. Let’s put it this way: at least the adjective in the phrase ‘constitutional democracy’ would be lost.”
Mainstream conservative thinkers agree that defying court orders would cross a constitutional Rubicon. “If the administration openly defies a court order, then I think we are in a different situation,” warned Yuval Levin, a public policy expert at the American Enterprise Institute, in an interview on Ezra Klein’s New York Times podcast where he largely argued against the conclusion that Trump and Musk are engaged in illegal or unconstitutional conduct.
But as federal judges begin to block Trump administration actions, Musk, Trump, Vice President JD Vance, and their followers have responded with a campaign to discredit not only those judges, but the judicial system itself, should it stand in their way. The strategy, which echoes Christian nationalist beliefs about the sovereignty of rulers, appears to be an attempt to set the stage for defying the US Supreme Court if it doesn’t ultimately validate their efforts.
Kim Lane Scheppele, a Princeton University professor who focuses on the rise and fall of constitutional governments, says the attacks are a replay of the distrust Trump and his followers sowed about the election system during his three presidential campaigns, when Trump claimed ahead of voting that the election would be rigged against him. “They’re doing is the exact same thing,” Scheppele explains, by “pre-delegitimizing all the courts.”
If the Supreme Court ultimately rules for Trump’s administration, “it’ll all be forgotten. But if they lose, they prepare the ground for rebellion against the judges,” Scheppele warns.
Musk, in particular, is busy laying out this framework on X, the social media platform he owns. On February 3, amidst his lawless, whirlwind effort to seize control of the federal government via the so-called Department of Government Efficiency, he paused to post a warning on X: “Activist judges must be removed from the bench or there is no justice.” Just five days before he had posted that “If no judge is EVER removed from the bench, no matter HOW unjust their verdicts, our legal system is fundamentally broken. This MUST happen.” Some of his attacks have come in response to claims about judges in other countries, or in local court systems. “That contemptible worm posing as a judge should be thrown out and face criminal charges,” he wrote while attacking a UK judge. He called a Delaware jurist who blocked his multi-billion dollar Tesla compensation package “a radical far left activist cosplaying as a judge.” Such smears and dehumanizing rhetoric help define the judicial system as illegitimate—and even could set the stage for violence against judges who rule against him or Trump. As Musk wrote in October when responding to a far-right Italian account: “Necessarily, to be a true democracy, it must be will of the PEOPLE that prevails. No judge is greater than the consensus will of the people.”
This rhetoric ramped up as federal judges began to hit the pause button on some of DOGE’s activities. After a Manhattan federal district court judge issued a temporary order that may have prohibited Musk’s team from viewing the Treasury Department’s sensitive payment system information, DOJ lawyers pursued a normal approach and asked the judge to reconsider.
Smears and dehumanizing rhetoric could set the stage for violence against judges.
But Musk, Vance, and some of their supporters quickly jumped to the idea of impeaching judges and defying court orders. On February 8, Musk agreed with a post by Sen. Mike Lee (R-Utah) that the New York-based judge’s order was a judicial “coup.” The next day, Musk called for his impeachment and proposed that Congress be able to fire the “worst 1%” of judges. The day after, he broadly called on Congress to begin impeaching judges.
Vance joined the push on February 8, when he reposted a message from a far-right Harvard legal scholar who claimed judges have no business pausing presidential actions: “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.” A day later, Vance posted his own version: “Judges aren’t allowed to control the executive’s legitimate power.” When Sen. Adam Schiff (D-Calif.) responded to warn Vance that “ignoring court decisions we don’t like puts us on a dangerous path to lawlessness,” Vance doubled down by reposting a response that called for defying the courts and highlighted “the fact that the judiciary has nothing to compel obedience.”
This isn’t the first time that Vance, who has a law degree from Yale, has called for defying judges. During his Senate campaign, he urged Trump to fire civil servants and ignore the Supreme Court if it disagreed. “When the courts stop you,” Vance said during an a 2021 podcast taping, “stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling. Now let him enforce it.’” With Trump and his subordinates now having fired civil servants, independent agency commissioners, and inspectors general in violation of the law, we may soon find out if Vance was bluffing.
On Sunday, while making his way back from the Super Bowl, Trump himself made his own complaints about the judges who have put up roadblocks to Musk’s assault on the government. “No judge, frankly, should be allowed to make that kind of a decision. It’s a disgrace,” he groused.
While Musk and Vance’s recent posts are the most prominent recent examples of right-wingers toying with defying courts, figures from the Christian nationalist segment of Trump’s coalition have also been pushing the step. In their drive to end what they refer to as “judicial supremacy,” they would remake our system of government and establish Trump as, in virtually every sense of the word, a king.
In late January, Jeremy Carl, a senior fellow at the conservative Claremont Institute who served as a deputy assistant Secretary of the Interior during the first Trump administration, posted to his 46,000 X followers that the “the single biggest litmus test for” a new Trump administration would be how it responded to “rogue judges attempting to thwart its lawful actions.”
Carl, who has argued in favor of Christian nationalism and is the author of the 2024 book The Unprotected Class: How Anti-White Racism Is Tearing America Apart, got decent traction with the post—upwards of 235,000 views. Among those who noticed was far-right activist Charles Haywood, a shampoo magnate who, as the Guardian has reported, runs a secretive, Christian nationalist group called the Society for American Civic Renewal. Haywood believes that an authoritarian takeover of the US government is both imminent and necessary. He has written that he aspires to serve as a “warlord” leader of armed factions who would wage “more-or-less open warfare with the federal government, or some subset or remnant of it.” To his own 35,000 X followers, Haywood reposted Carl’s post, commenting, “This is exactly right. Sovereign is he who decides the state of exception. And Trump had better establish, fast, that he is sovereign over the Executive Branch, rather than subordinate to puffed-up judges. Because if he is not sovereign, he is nothing.”
That wasn’t the first time Haywood had argued in favor of Trump establishing authority over the courts. In a December blog post, he expounded upon the concept of “private justice”—basically the idea that in an unjust society, it’s acceptable for citizens to exact justice on their own. The United States, he argued, was unjust partly because of the state of its courts. Juries, he wrote, “are usually entirely composed of the lower orders of society, who cannot escape from the burden of jury service by cleverly pleading hardship of one type or another, and of those with a political ax to grind.” US judges, he writes, have “tremendous and often not-reviewable discretion.” He slammed judges in Washington, D.C. who oversaw trials of January 6 rioters as crusaders for left-wing causes, accusing them of having “savagely sentenced men and women with ludicrous penalties, as they shriek and spew hatred at the defendants.” He complains that “when today Americans peacefully protest against abortion, they receive long prison sentences imposed by cackling judges.”
Christian nationalists’ drive to end what they call “judicial supremacy” would virtually establish Trump as a king.
Another person who responded publicly to Carl’s January X post was Ben Crenshaw, a visiting assistant professor at the University of Mississippi’s Declaration of Independence Center. “My advice: ignore the courts and carry on,” he posted in a reply to Carl. A few days earlier, Crenshaw had published a piece in American Reformer called “The End of the Rule of Black Robes,” which responded to a federal district court injunction barring Trump’s executive order seeking to end birthright citizenship. “Any other Republican president would abide by the injunction and begin the torturous, expensive, and lengthy litigious process of challenging the ruling all the way up the Supreme Court,” Crenshaw wrote. “But Trump is not like any Republican president and there is another path—a more risky but also potentially fruitful—path he could take. Trump could ignore the federal judge and continue to enforce his executive order.”
American Reformer is the unofficial journal of the TheoBros, a group of mostly millennial, ultra-conservative men, many of whom proudly call themselves Christian nationalists. One tenet of their take on Protestantism is the idea that the United States should be subject to biblical law rather than a secular constitution. One of the journal’s board members is Chris Buskirk, who in 2019 co-founded the Rockbridge Network, a powerful group of Republican donors, with Vance. Buskirk also founded 1789 Capital, the rightwing investment firm where Donald Trump Jr. recently began working.
Vance’s connection to anti-democratic ideas isn’t just from the Christian nationalist movement. Vance is also a creature of the reactionary, anti-democratic ideologies that have taken hold in Silicon Valley, where he worked for billionaire Peter Thiel, himself a self-proclaimed monarchist. This so-called “New right” views democracy as a weak, underperforming form of government in contrast to kings who can rule a country like a CEO runs a company. In the last few weeks, Musk’s hostile takeover in the same style that he slashed and gutted Twitter is an example of this ideology literally taking hold in government under Trump.
One of the most well-known purveyors of this anti-democratic thinking is the blogger Curtis Yarvin, whom Vance has cited as an intellectual influence. In a recent interview with Politico, Yarvin expressed an openness to defying the Supreme Court, suggesting that “the right moment” could come after Trump cemented himself in a position of popularity.
By contrast, many Christian nationalists chiming in say the lower courts—those already blocking many of Trump’s and Musk’s operations—have issued illegitimate rulings that should be ignored now. After Musk’s attempt to get federal workers to sign away employee rights and voluntarily resign was put on hold by a judge, Carl urged the administration to ignore the order. “We’re going to find out soon whether Judge O’Toole, some random judge in Mass. who nobody has ever heard of, or President Trump runs the Executive Branch,” the Claremont Institute analyst posted on X. “I hope the administration protects its rights aggressively.”
A week earlier, when Trump’s illegal scheme halting billions in government spending was blocked by a judge in DC, Carl had also urged defiance, citing Abraham Lincoln’s famous refusal to comply with an order from Supreme Court Chief Justice Roger Taney in 1861. “If Trump surrenders the legitimate authority the American people invested in him to a radical District Court Judge, nothing else matters,” he wrote. “Channel Lincoln and make a legal argument that tells the judge to pound sand.” (“It was a freaking civil war,” Redish says of Lincoln’s actions. “I don’t think you can generalize that kind of situation.”)
In calling for Trump to ignore court orders, Carl and his fellow Christian nationalists are urging the president to set off an obvious and dramatic constitutional crisis. That kind of bold defiance, says Scheppele, might invite broad pushback—something Trump and his allies likely want to avoid. Instead, she cautions, they might opt for delayed and incomplete compliance. “People who are worried about this shouldn’t assume that the absence of a clear declaration of defiance means we’re fine,” she says. “You have to pay way more close attention to what’s actually happening on the ground.”
Slow, slapdash compliance can cause permanent harm without the risks of open defiance.
We are already seeing the Trump administration take this approach. On Trump’s seventh day in office, when the Office of Management and Budget released a memo ordering a freeze in billions of dollars of federal payments, judges quickly jumped in to stop this “wildly illegal” order, as the president does not have the authority to halt spending appropriated by Congress. But two weeks later, on February 10, a federal judge in Rhode Island found that parts of the administration were failing to comply and ordered those offices again to restart spending. In the case fighting the closure of USAID, plaintiffs allege the administration is defying the court’s order to reinstate employees; and ProPublica has found many other instances of noncompliance affecting everything from health services to water projects. In what could be a sign of judicial pushback, on Tuesday a judge in Massachusetts not only blocked cuts to NIH research grants, but put in place ongoing reporting requirements to confirm the administration would obey the ruling.
This slow, slapdash compliance can cause permanent harm by making space for Trump and Musk’s court-barred agendas to proceed, without the risk of crossing into open defiance. The strategy is working. Organizations and contractors connected with USAID have laid off employees and shut their doors, causing millions globally to lose access to food and medication, even as a judge has ordered a halt to the dismissal of all USAID employees. “They’re much more concerned with breaking things, changing facts on the ground,” says Scheppele, who used an analogy of destroying an aquarium with a blender. “They’ve already blended all the fish, they’re not going to be able to recover the aquarium. They’re just moving so fast, hoping the courts will be slow, so that by the time the court gives them a final order, they’ll say, ‘Well, what do you want us to do? It’s fish soup.’”
Whether the Trump administration crosses into open defiance of courts or not, the push to empower the president to do whatever he wants is well underway—with or without the courts’ blessing.
