The more Donald Trump and his administration push the legal envelope, the more they lose in court. In fact, Adam Bonica, a political science professor at Stanford, found that the president has faced a variety of legal fights this month, and he’s lost 96% of the time. Even when Trump’s cases have landed before Republican-appointed judges, he’s still lost 72% of the time.
For assorted partisans, there are competing ways to interpret the White House’s many legal setbacks. Press secretary Karoline Leavitt, for example, recently pitched reporters on the idea that an elaborate conspiracy against Trump has made it nearly impossible for the president to succeed in a corrupted justice system. And while that was hysterical nonsense, Trump himself has gone further, accusing judges who dare to rule in ways he doesn’t like of being anti-American “monsters” and “lunatics” who “who want our country to go to hell.”
JD Vance hasn’t used comparable rhetoric, but when the vice president sat down last week with The New York Times’ Ross Douthat, he did voice concern about “a real conflict between two important principles in the United States.” From the transcript of the interview:
Principle 1, of course, is that courts interpret the law. Principle 2 is that the American people decide how they’re governed. That’s the fundamental small-d democratic principle that’s at the heart of the American project. I think that you are seeing, and I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people.
This argument comes up from time to time, despite its ridiculousness. Indeed, about a month after Trump’s second inaugural, Elon Musk appeared on Fox News and argued, “If the will of the president is not implemented and the president is representative of the people, that means the will of the people is not being implemented, and that means we don’t live in a democracy.”
The argument reflects a certain child-like logic: Trump won a democratic election, so to deny the president’s will is to defy democracy. Of course, if the U.S. were an autocracy; if the rule of law didn’t exist; and if the powers of the presidency were indistinguishable from that of a king, then Musk’s pitch might make sense. But since that isn’t the case, Musk’s argument is both absurd and at odds with how our Madisonian political system is designed to work.
The trouble, of course, is that Vance’s pitch was similar — and similarly wrong.
To hear the vice president tell it, not quite 50% of voters backed Trump, which in turn means the president reflects the will of the American electorate, which ultimately means that courts should let Trump do as he pleases because the alternative is to “quite literally overturn” the voters’ will.
Vance said this assessment would be seen as “inflammatory,” but that’s the wrong adjective. It’s far more accurate to describe it as pseudo-constitutional gibberish. It falls on the judiciary to evaluate legal disputes on their merits. It is not the job of the courts to defer to another branch of government based on election results. In our system, there is no such rule that suggests, “If people vote for a candidate, the candidate’s platform instantly becomes legal.” New York magazine’s Ed Kilgore summarized, “Repeated again and again, the idea that judges should bend the law to suit Trump because he, unlike his predecessors, uniquely embodies the Popular Will (even though an actual majority of voters did not vote for him last year) is pernicious and, worse yet, validates the already-powerful authoritarian tendencies of the president, his advisers, and his fans in conservative media and on MAGA social media.” It’s a point worth keeping in mind the next time one of Trump’s allies peddles this absurdity.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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