“If ANY judge ANYWHERE can block EVERY Presidential order EVERYWHERE, we do NOT have democracy, we have TYRANNY of the JUDICIARY,” posted a clearly frustrated Elon Musk on his X platform in late February. Musk appeared to be reacting to multiple US federal court rulings that have since reversed or put on hold the DOGE-recommended sacking of federal employees, the cancellation of federal grant payments, and even the mere review of federal spending by constitutionally appointed members of President Donald Trump’s new administration.
Additional rulings by US federal judges have reversed or stayed the deportation of illegal immigrants identified as violent criminals belonging to gangs with which Trump has said America is at war. In one controversial case, US federal judge James Boasberg, who sits in Washington as Chief Judge of the District Court for the District of Columbia, ordered that aircraft carrying illegal immigrant gang suspects to detention in El Salvador to turn around in mid-air, possibly over international waters where he has no jurisdiction.
As of last week, the Trump administration has suffered 46 adverse rulings out of 67 filings to block his executive actions. Joe Biden, in contrast, faced only 14 nationwide adverse rulings in the entire four years of his presidency. Abroad, judicial action has targeted populist leaders or parties in countries ranging from Brazil and Romania to France. On Monday Marine Le Pen, leader of the largest party in the French parliament and favoured to win the country’s presidency in 2027, was judicially barred from running for public office for the next five years.
Trump is no stranger to these “lawfare” tactics. He was prosecuted in two impeachment cases in his first term and, while running for re-election, prosecuted in four criminal cases launched either by Biden’s Justice Department or by local Democratic prosecutors.
Now back in office, Trump faces renewed lawfare, the only means of official resistance left to a desperate Democratic opposition. Even as Trump denounces judges like Boasberg, whom he has called a “radical Left lunatic”, he has said he will follow the courts. This means that any of America’s 677 district court judges can reverse or suspend his initiatives at will and with national effect. Some have already done so as “emergency” measures in rulings that the Trump administration must appeal to higher-level circuit courts and, if unsuccessful, to the Supreme Court. Republican-appointed justices hold a 6-3 Supreme Court majority, though some occasionally side against Trump.
As a branch of government, the judiciary is empowered to interpret laws but not make them. Over time, however, it has clearly become prone to overreach and abuse. Presidents can appoint jurists expected to follow ideological dictates rather than objective legal interpretations. Democratic Senate Minority Leader Chuck Schumer recently boasted that his party installed 235 “progressive” judges – more than one-third of the total – who are “ruling against Trump time after time after time”. Even when controlled by the opposing party, the Senate, which must confirm federal judges, rarely votes down nominated candidates.
Chuck Schumer speaks at the US Capitol on Tuesday – JIM LO SCALZO/EPA-EFE/Shutterstock
Plaintiffs seeking a partisan ruling can “forum shop”, or file lawsuits in districts where they believe it more likely that an ideologically sympathetic judge will be assigned to their case. A considerable number of the lawsuits filed against the second Trump administration so far have been filed in Washington, where the judges and, potentially, juries, are thought to skew dramatically to the Left.
In view of recent cases, there appears to be no limit on the scope of a judge’s actions if the other branches of government take no corrective action. The appeals process can take months or years, sometimes so long that the root issue becomes moot before any final decision is reached. In 2024, public opinion polls registered that a majority of Americans no longer have confidence in the judiciary.
Judges can only be removed by impeachment proceedings. As in presidential impeachments, removal from office for a federal judge requires a two-thirds majority vote in the Senate, a threshold so high that only 15 judges (at all levels) have ever been impeached, with just eight removed from office.
Nevertheless, impeachment is surely a valid option for Trump, particularly against judges who are seen to usurp his constitutional prerogatives. Recall that the Democrats assiduously impeached Trump twice, both times knowing full well that they did not have the votes to remove him from office or deny him future office. As would be the case with overstepping judges, the process alone is the punishment: exhausting, expensive, nerve-wracking, discrediting, and dissuasive to others.
Some Republicans have introduced impeachment resolutions in the House of Representatives. For now, however, the House leadership seems to prefer legislation to curtail judicial power by statute, a method used in other countries with overweening judiciaries.
But that may take too long or, given the narrow Republican House majority, not pass at all. If Trump wants to fulfill his promise to save America, he may come to realise that impeaching the judges may be the only answer.
Paul du Quenoy is a historian and president of the Palm Beach Freedom Institute
