Don’t Trust the Courts

The legal fight against Trump’s attack on Muslims will only succeed if it's backed up by mass politics.

Protesters at New York City's JFK Airport on Saturday. Beverly Yuen Thompson / Flickr

Donald Trump has unleashed a crisis.

On Friday, Trump issued an executive order barring travelers from several war-ravaged states in the Middle East and North Africa — states that the Department of Homeland Security (DHS) considers “countries of concern.”

Drafted by two of the White House’s leading racists, Steve Bannon and Stephen Miller, the order was an unambiguously xenophobic attempt to target Muslims on the basis of their religion. The following day, federal agents began stopping and detaining airline passengers covered under the order, including those with green cards.

Yet before the day was over, protesters had amassed in several airports across the country, and a Brooklyn judge had issued a nationwide stay against the order.

The stay, while opening up a rift between the judiciary and the executive, is only a temporary respite. It will offer no comfort to those already turned away, and the outcome of the hearing scheduled for next month is uncertain. Worse, Customs and Border Protection (CBP) agents reportedly refused to comply with the ruling and with other court orders at many airports. As of this writing, the orders are going largely unenforced. Federal agents are continuing to hold travelers, denying them access to attorneys and pressuring some to relinquish their legal status as immigrants.

The eagerness with which CBP agents swiftly targeted, detained, and deported people seeking to enter or re-enter the country should come as no surprise. Nor should the ensuing chaos be seen as accidental.

Trump’s team likely had several strategic aims in mind. They wanted to conflate Islam with criminality and subversion. They wanted to tacitly encourage DHS personnel to arrogate police power to themselves. And they wanted to demonstrate the flimsiness of the web of authority, deference, and trust that restrains the security services’ latent, ever-present capacity for violence.

The ongoing showdown between the courts and federal agents both reveals the partial autonomy of state institutions and augurs a full-blown crisis of institutional relations. It offers Trump, Bannon, and Miller an opportunity to attempt to consolidate their power. But it also presents an opportunity for left opponents of Trump.

One vehicle for resistance will be the courts. But a legal battle will only be won if judges’ room for maneuver is limited by public opinion, if the costs of defying court orders are higher than the security services are willing to bear, and if the administration’s lack of a mandate is made clear.

In other words, it will only be won with sustained, mass democratic action.

The law is not an autonomous domain where expertise, deliberation, or (least of all) moral suasion are sure to prevail. Courts are political institutions, structured and constrained by social power and sensitive to the balance of social forces. Protesters against the refugee ban must not succumb to the idea that the institutions of constitutional democracy will ride to our rescue, or that democratic norms are self-enforcing.

Unfortunately, the myth that the judiciary is a natural friend of individual rights, against the overweening power of the state, persists in large swathes of the American polity. Its origins are in the brief efflorescence of progressive jurisprudence in the middle of the twentieth century, when liberal Supreme Court justices relied on novel constructions of legal texts and principles to advance the rights of the accused, expand protected civil liberties, and construct a state anti-discrimination apparatus.

Such decisions often delivered important victories for the social movements of the day. But those victories were possible only because these movements — most importantly, the Civil Rights Movement — put incredible pressure on the Court and other state organs. The Court is rarely unresponsive to public opinion for long; and, like the rest of the federal government, it could not risk ignoring the demands and the commitments of organized people.

Over the weekend, immigration lawyers and protesters came together to form tactical partnerships — perhaps signaling the revival of a left-liberal legal movement anchored in a broader social struggle. This would be a welcome development.

The Supreme Court championed an egalitarian vision of citizenship only as long as the Civil Rights Movement boxed it in. Today, the judicial system will only be a bulwark against the horrors and cruelties of the deportation regime — built up under Bush and then Obama — if it is constrained by popular pressure. There’s no doubt that the judges who quickly issued court orders over the weekend had confrontational mass politics on their mind.

Going forward, judges will have to continue to feel the fire of collective action if they’re going to produce the legal frameworks needed to protect refugees.

Trump is clearly fond of executive orders.

They create the impression that he is getting things done. They have substantial symbolic value for what he imagines to be his broad base of support. They enable him to sow chaos and confusion, and to forge links with the rank and file of law enforcement, bypassing whole layers of the federal bureaucracy in the process. (Trump and his allies realize where their strongest support lies within state structures.)

Executive orders can be expected to proliferate under Trump. We’ll have to use every available means to resist them, including the law. But mass democratic politics will be the lifeblood of any effective countermovement.

As last weekend’s protests show, democracy is not primarily a question of counting votes. Still less is it a matter of searching for common ground with racists and xenophobes, of conciliating those who want us dead. Democracy is not found in an abstract unity like “the people” but in the pursuit of collective interests through mass action. It is given form and content through social division and through confrontation with power.

Democracy is conflict — and when we fight, we win.

Chanting at mass actions is a curious thing. In a sufficiently large crowd, different chants will break out simultaneously, overlapping and shading into one another. A certain dissonance results. But few things are as satisfying as when an entire group of people converge on a single theme, with all the complex unity of choral harmony.

On Saturday night at Dulles Airport, during a momentary lull in chanting, I heard one person call out: “They build a wall?” Several hundred people thundered in unison: “We tear it down!” The call and the response repeated for several minutes.

Aside from a few friends, I knew no one else in the crowd. As with other protest actions at airports throughout the US, most participants had only learned of it a few hours earlier. It could easily have fizzled out in confusion or disarray. And yet the crowd of strangers I had joined was now finding common purpose, and solidarity, through mass confrontational politics. They were buoyant, they were confident, and they were refusing to despair.

This is the kind of action we’ll need to thwart Trump’s attempt to ruin the lives, families, and dignity of Muslims. This is how solidarity will be built and how the ban must be resisted — not through appeals to the law, but by making our voices heard and our presence, power, and defiance unavoidable.