There is much speculation on whether President Trump will simply refuse to comply with judicial orders. There’s the famous line of Andrew Jackson, “The court has made their ruling, let them enforce it.” JD Vance recently tweeted that he does not believe Musk’s rogue DOGE agency should be subject to judicial review. The writer behind a lot of the philosophy of Trump and Vance, Curtis Yarvin, advocates that the president should simply ignore court orders and do what he wills. Many have lamented that if this were the case, that there is nothing the Supreme Court could do. That they would simply be powerless, and that the only hope would be that the military would step in.
But I can think of an option for such a scenario that I haven’t heard discussed anywhere. If a president openly defies a direct order by a Supreme Court, could the court then call upon the ancient common law tradition of a Writ of Outlawry?
https://en.wikipedia.org/wiki/Outlaw
In common parlance, we use the term “outlaw” to refer to someone that is simply a criminal or on the run from the law. But traditionally it was something a lot more specific. Back in ancient days where it was much more difficult to track down fugitives, courts would declare those who refused to subject themselves to the court’s process as “outlaws.” They literally were declared as outside the protection from the law. It was then legal for literally anyone to do whatever they wanted to that person, and they would face no legal penalties whatsoever. An outlaw could literally be killed, and their killer would face no penalties. The philosophy was that if someone was going to refuse to subject themselves to the law, then they did not deserve the protection of the law.
Could this be the answer to Jackson’s quip? Ultimately the Supreme Court determines the working of the justice system. If a court rules that no lower court can hold someone accountable for crimes against someone, then anyone could harm that person with impunity.
Could this be a final and ultimate option for the Supreme Court to hold a rogue president accountable? Give the president plenty of chances and fair warning. But if the president simply refuses to abide by the court’s rulings, then the court could activate this ancient tradition and declare them an outlaw. It would then be completely legal for anyone to do whatever they wanted to the president, including the Secret Service agents that surround him at all times. Could the Supreme Court rein in a lawless president by simply declaring that president outside of the law’s protection?
Maybe, but in this case the Supreme Court is sitting beside him holding his hand while he drives all of us into the Grand Canyon
The Republican Supreme Court, who decided that presidents are kings? You’re asking about THAT SCROTUS?
The court has ruled against Trump on numerous occasions. The idea they blindly support everything he does is simply not backed up by reality.
Did they rule that he has broad immunity? Yes. But ultimately they ruled it in a way that puts them as the arbiter of which acts have said immunity.
That limit was added while Biden was president likely to specifically limit him. I suspect (though we will need to see) that SCOTUS will not limit any presidential actions.
Maybe not in terms of criminal accountability. But again, the court has ruled against Trump numerous times. The idea they blindly support everything he does is pure fiction. In his first term, they ruled against him many times.
Keep in mind that there’s 2 new justices that were instated by Trump during his first term and 4+ years have passed
Stop being reasonable. People are trying to doomscroll here 😠
Doomscrolling will doom us all. Fatalism is fatal. Rage against the dying of the light. Start building community, or start building bombs. Those are your choices.
Of course it’s nuts, but also pretty hilarious that they chose that guy for their king experiment.
The supreme court has no enforcement powers. The most they can do is de-legitimize the actions of a president, but its still up to the law enforcement to stop doing those illegal acts. Also, presidents can just fire federal law enforcement officers that disobey, like get maga loyalists to physically evict them.
Most of the resistance would have to be from states. States can tell their state law enforcement to stop federal officers from doing their illegal acts, states can deploy the national guard, and tell them to refuse federal orders. It all comes down to what the people holding the guns (law enforcement) decide to do. If they obey their governors and resist, Democracy might survive, if they disregard their governors and obey the president, the US will officially become a dictatorship.
And don’t count on the red states, only blue states would consider resisting (hopefully, Democratic governors find their spine).
TLDR: Don’t count on the supreme court, the last line of defence is with the states and federalism.
It’s actually congresses job to rein him in.
about that…
glances at the composition of congress
While hugely popular in England, and fucking LEGENDARY in Iceland (see “Grettir’s Saga”), Outlawry has no basis in US law.
It’s part of the common law tradition though. Could it not be brought back?
Common laws is dynamic, subject to interpretation and serves often to fill gaps in legislation.
Common Law is simply a principle that similar judicial findings are binding for future cases. Whilst US, UK, South Africa, Canada etc. Are all common law countries, the application and interpretation of common law is by no means consistend and the US has diverged the furthest from the English tradition.
So whilst a traditional common law principle may be alive in law, it may also have been modified by a combination of contemporary judicial findings and legislative intervention.
Common law isn’t actual law in the US.
To be clear, historic English common law principles may not be as persuasive or binding to US judicial findings. However, the US absolutely is a Common Law jurisdiction, see eg [1]
How does this not end up creating king makers like the Praetorian Guard of ancient Rome?
I do not worry about Caesar like I worry about the environment and culture that created him. Once that page is turned there is no going back and dispatch of Caesar only creates Augustus.
Couldn’t the same be said for impeachment and conviction in the Senate? If Congress can simply remove a president they don’t like, how does this not end up making kingmakers like the Praetorian Guard of ancient Rome?
It is within the original design of checks and balances with precedent if Congress impeaches. If the supreme court uses a technical hole to take absolute power, they are already the most rogue branch without accountability, so you effectively make them a shared monarchy and abolish any effective executive role.
They would have checks and balances. They could still be removed by impeachment. Members of the court would still have to be nominated by the president and confirmed by the Senate.
But they are openly corrupt in the present and have no accountability for ethics. In practice they are in the position for life and are willing to sell themselves like whores to the oligarchy. They show no check and balance in practice. They are more dangerous than Trump in my opinion.
The president is also openly corrupt, by orders of magnitude more. That crypto scheme for one is just a blatantly obvious bribery mechanism. Sure, the justices serve for life. But if a president is willing to directly violate explicit court orders, he could easily decide not to leave office as well. He could issue an executive order saying, "in my opinion, the two-term limit doesn’t apply because <bullshit reasons.> And then when the court rules against him, just ignore their ruling. A lawless president is a president for life.
Ultimately, philosophically, I don’t see why a president that openly defies the law should enjoy the protections of the law. Want to be lawless? Then you can be an outlaw. Those who live by the sword should die by the sword.
A lawless president is a president for life.
I agree, but start toppling cards and the whole house can (and usually does) fall.
There are ways to rein in the court, even with life terms. We can’t get rid of the life terms without an amendment. But we could pack the court. Add 10 justices today, and it doesn’t really matter what the other 9 have to say about it.
More realistically, I think we shouldn’t fill empty seats on the court. I think that when a justice dies, the court should just move on without them.
A new justice should be appointed in the 11th and 35th month of each presidential term, regardless of the court’s current size. That puts the the nomination as far away from an election as possible, while guaranteeing each president has some influence on the court. The average term is about 26 years; the longest term has been 36. I would expect the court size to average about 13 members, and probably not exceed 18. A single president could only appoint 4 members in two terms.
I would also establish a line of succession in the circuit courts, to automatically reconstitute a court that falls below 5 members, or to hear cases the SCOTUS is conflicted out of. Since any circuit court judge could find themselves on the supreme court, the senate’s confirmation to the circuit court is also a confirmation to SCOTUS. The president has a small pool of qualified nominees that are pre-confirmed and thus can’t be blocked.
They had 300 years then where the next one usually murdered the previous one…
While T and Vance like to talk big about this, they have fallen quite short of “crossing the Rubicon” and actually doing anything close to this.
A T45-appointed judge issued the Temporary Restraining Order for the USAID admin leave action, and if you read the ruling, the T47 team provides zero evidence, legal justification, or even coherent thought at any point. Their case was entirely “well…but we wanna.” And the judge’s ruling has made them take a step back and do thing the legal way.
T47 doesn’t have a solid partner in Congress due to a thin margin, so there’s no hope of them retroactively covering the legal aspects of hebbulldozes a mess. The courts still haven’t given him freedom to do everything he wants, and for now his people are actually listening to that.
Theoretically, they could. I mean, they hold the power of appellate review. They can acquit anyone for any reason. There is nothing in the constitution preventing them from announcing that they will acquit someone taking a specific action.
But shenanigans beget shenanigans, and I’m sure Congress and future presidents would have something to say about it. Impeachment and court packing are both feasible.
Direct link to the YouTube video in your comment
Try to avoid Facebook links whenever possible because not only does Facebook not share any of its advertising revenue with content creators but it’s also just a terrible user experience overall.
Didn’t even realize it was a Facebook link I pulled. My bad. Fixed.
