How to Break a Judiciary, Part 1: Choosing Your Judges
Guest Essay by Alyssa King
A month ago, Steven Levitsky and Lucan A. Way published an insightful argument that the US is veering towards a competitive authoritarian regime. By some accounts, it is a personalized, patrimonial government. DOGE is also reminiscent of Leninist party-state structures in which Party positions and internal rules and directives run parallel to “official” ones. It is not entirely clear what type of government Trump and/or Musk are trying to build; they may not know themselves. What is clear is that the federal courts are at risk and with them the US reputation for maintaining not only democracy but also the rule of law.
Authoritarian regimes have many ways to curb the power of independent judges without directly altering the structure of the judiciary, judges’ pay, or judicial ethics rules. The US administration is engaging in many of these actions, and the world has started to take notice. As an American teaching law outside the United States, I find it hard to convey just how quickly attitudes have shifted and how deep the alarm now is among my students and colleagues. They care because of how many clients have contact with the United States and because of the influence of the United States in setting global standards for the bench and bar, especially, but not exclusively, in common law jurisdictions.
If even the well-resourced and respected US federal courts cannot be protected, some litigation business may move elsewhere, some parties may eschew the courts altogether, and governments around the world will have an additional way to pressure their own judges. If US lawyers (and foreign colleagues of goodwill) can prevent all or even some of these methods from working, we can help maintain fair courts and the rule of law both in the United States and in every other jurisdiction that is watching.
As Levitsky and Way argue in relation to the United States and Alvin Cheung argued in relation to Singapore and Hong Kong, one can do plenty without changing either constitutions or major organizing legislation. In this first of a three-part series of essays, I want to highlight issues related to who decides. Part II will address working conditions for judges and court staff before Part III turns to what judges and lawyers can do if they see some or all of these problems develop. I assume that there is no change to the formal structure of judicial jobs in the federal or state constitutions and that judicial independence remains a formal aspiration.
Who Decides? Judges and Jurisdiction
Controlling who decides is one way to get more favorable decisions, whether it is hiring allies, firing critics, or playing with rules of jurisdiction.
A. Hiring Your Allies
The House Judiciary Committee recently reported out representative Darrell Issa’s bill to expand the number of district court judgeships, adding one or two judges per year to each of the affected districts over the next six years. If the bill survives the Senate, President Trump would likely make use of the opportunity to appoint more loyalists to the bench, as he did in his first term. Yet hiring lawyers who seem to share your ideological commitments is not a safe enough strategy for many authoritarians. Judges and lawyers are professionals. Professional identities come with a set of alternative commitments beyond one’s commitment as party member and may dictate a role morality incompatible with giving the leader everything he wants. A judge may be more committed to an underlying ideology than to the perpetuation of a specific person’s power, which becomes awkward if highly placed regime members are less committed to that ideology. MAGA have arguably run into this problem with Justice Amy Coney Barrett.
B. Firing Your Critics
The Justice Department's attempts to have various judges recused have met with no success, so the administration may go a step further and try to have them fired. In Poland, the Law and Justice Party not only hired allies, but also removed critics, remaking a large swath of the judiciary. This strategy was costly, as the existing judges refused to go quietly, setting off a fight that reached the European Union level. The Jammeh regime in The Gambia was notorious for hiring foreign judges on short contracts and then refusing to renew those who ruled in a way it did not like. Federal judges are a bit harder to remove.
I originally thought that loose talk of impeaching judges on ideological grounds was still “off the wall” politically, but more recent events have me reevaluating this view. Elon Musk has been donating to members of Congress willing to bring articles of impeachment. Chief Justice John Roberts even saw fit to intervene to explain why impeaching judges is reckless. And it would be a terrible idea. MAGA don’t have the votes in the Senate to remove judges they may impeach. Moreover, the move would set off alarm bells among users of the federal courts, including US and foreign corporations, just as Polish hiring and firing efforts did. If the problem went on long enough, US companies could do what Russian oligarchs do and litigate in London. That choice would amount to a lot of business lost for US law firms and professional services companies and could ultimately leave the United States with less of a say in the global economy. Some members of Congress understand these risks, but I am no longer so certain they will prevail.
C. Special Courts
Overhauling one’s entire court system is difficult and tends to get attention. Creating special courts is simpler. In the United States, legislatively-created “Article I” courts offer considerably less professional protection to their judges. Past executives have already used these courts to create zones of less procedural protection outside the notice of many in the legal profession in immigration law and at Guantanamo Bay. The Trump administration has already engaged in mass firing of immigration judges, worsening an alarming case backlog. Another approach is to create specific panels of federal judges, like the panel that has authority to rule on FISA warrants, or the set of judges handpicked by Hong Kong’s Chief Executive to handle National Security Law cases.
Some evidence exists that the administration is not willing to bother with special courts. After invoking the 1798 Alien Enemies Act through a theory that members of a gang can be at war with the United States, the administration did not bother to use the Alien Terrorist Removal Court. New special courts would also require legislation. Other options, such as a bespoke arbitration system for federal contracts, also take time to set up. If one intends one’s partisans to range throughout a sprawling federal bureaucracy as DOGE is doing, it might be hard to sequester all of what they do away in special courts or tribunals.
But our would-be authoritarians can find much simpler and less visible options. I shall turn to one such set of options in Part II, tomorrow.
Alyssa King is an Assistant Professor at the Queen’s University Faculty of Law. She is a member of the New York Bar.