Donald Trump’s attacks on the courts lack recent precedent in the United States, but they follow a clear pattern seen in backsliding democracies around the world. In many countries, when political leaders challenge the courts, the end result isn’t merely a win in a single policy dispute. These attacks have a deeper, more destructive effect: They systematically weaken the courts as a check on the executive’s power—opening the door for governments to abuse that power to target opponents and endanger democracy.
This fight takes place both inside and, importantly, outside the courtroom, in the arena of the public’s opinion. Even though citizens generally agree that governments should obey court orders, several would-be authoritarians—such as those in Turkey, Mexico, and El Salvador—have managed to defy the courts, while keeping the public on their side. The interesting question is not why these leaders seek to turn public opinion against the judiciary—that much is obvious—but how they do it.
The pattern I have seen as I’ve studied democratic backsliding globally is what I call “court-baiting.” To undermine public support for the judiciary, political leaders adopt policies that are popular but very likely illegal. Many courts then rule against the executive, and the executive uses their unpopular decision to condemn the judiciary writ large. Court-baiting is a potent strategy because it puts judges in a lose-lose position: Either strike down a popular policy and face public backlash, or allow the policy and erode legal limits on executive power. Such tactics are tailor-made to undermine judges’ legitimacy, because elected leaders can claim to represent the “will of the people”—and thus democracy—when the courts block popular policies. Even when losing, these would-be authoritarians win.
This strategy of court-baiting is difficult to defend against because political leaders determined to weaken the courts hold a key strategic advantage. The executive branch sets the policy agenda, whereas the judiciary is a reactive institution. Presidents can thus choose favorable terrain on which to do battle with the judiciary, challenging the courts on policy issues that are popular with voters. In the United States today, by clashing with the judiciary on numerous cases involving immigration, the president is following precisely this court-baiting playbook.
To understand this dynamic, consider a textbook example from Turkey. When Turkey’s long-serving leader, Recep Tayyip Erdoğan, first rose to power in 2003, he initially faced powerful constraints from the judiciary. Whereas Erdoğan’s party was religiously conservative, Turkey’s courts were staunchly secular and issued dozens of decisions during Erdoğan’s first term to limit the government’s sway over historically secular state institutions.
