Trump’s New Plan to Undermine Judges: ‘Court-Baiting’

Since his inauguration, President Donald Trump and his allies have sought to turn public opinion against the judiciary by endlessly criticizing court orders and personally attacking judges.

Last month, however, in a legal fight over deporting migrants to countries they are not from, Trump may have embarked on a new strategy for undermining the judiciary called “court-baiting.”

Coined by Andrew O’Donohue, a Harvard political scientist who studies democratic backsliding, the tactic entails forcing the judiciary to take potentially unpopular decisions that are necessary to protect constitutional principles — then attacking them for those decisions. 

The tactic has been used by autocrats the world over — including in Turkey, Hungary and El Salvador — to erode perceptions of the courts’ legitimacy and weaken the rule of law.

In his effort to break down guardrails and consolidate power, Trump, too, may now be adopting it, specifically in deportation cases to challenge the fundamental right to due process.

“Trump sees the courts as a potential check on his power,” Noah Rosenblum, New York University School of Law professor, told Democracy Docket. “And he sees the courts ruling on behalf of unpopular defendants and attacks the courts by playing a popular position against their unpopularity, thus delegitimizing them in the eyes of the public.”

In late May, the Trump administration attempted to deport eight men to South Sudan, a country on the verge of civil war that the men are not citizens of and have no relation to. The government did so while giving the men no opportunity to raise objections. 

In attempting to deport the men to South Sudan without due process, the government “unquestionably” violated a court order from District Court Judge Brian Murphy, the judge found. Previously, the judge instructed the government to give deportees at least 15 days notice and a chance to object before sending them to a third country.

Instead of ordering the government to return the men to the U.S., which Department of Justice  (DOJ) attorneys strongly opposed, Murphy gave the government considerable latitude to come up with their own remedy for the violation.

At the DOJ’s suggestion, Murphy eventually ruled that the government could retain custody over the men at a U.S. military base in Djibouti, where they would be given a chance to contest their transfers to South Sudan. However, Murphy specified that the government could return the men to the U.S. or use normal deportation proceedings to move them to their home countries.

Unlike the people at the center of other recent high-profile deportation cases, the men in this case had been convicted of serious crimes, including murder and sexual assault. 

For example, their criminal histories are in stark contrast to the men the government transferred to a notorious prison in El Salvador after Trump invoked the Alien Enemies Act, most of whom do not have criminal records either in the U.S. or Venezuela and never violated immigration laws. 

Because of this, Trump and his officials almost immediately took to social media and MAGA-friendly outlets to pounce on Murphy’s order, framing the judge as putting Immigration and Customs Enforcement officials in danger to protect “monsters.”

“A Federal Judge in Boston, who knew absolutely nothing about the situation, or anything else, has ordered that EIGHT of the most violent criminals on Earth curtail their journey to South Sudan, and instead remain in Djibouti,” Trump said on social media. “He would not allow these monsters to proceed to their final destination.”

More evidence that the Trump administration engineered this fight to undermine the courts is the fact that it also organized a press conference with senior officials to attack Murphy.

“These are the monsters that the district judge is trying to protect,” Tricia McLaughlin, a spokeswoman for the Department of Homeland Security (DHS), said. “The contrast is brutally stark. President Trump and [DHS] Secretary Noem are working every single day to get these vicious criminals off of American streets, while activist judges are on the other side fighting to get them back on United States soil.”

The criticism reached such a pitch that, in a later order, Murphy urged Trump officials to tone down their rhetoric and specified that he is chiefly concerned about protecting due process rights.

“To be clear, the Court recognizes that the class members at issue here have criminal histories. But that does not change due process,” the judge wrote. “The Court treats its obligation to these principles with the seriousness that anyone committed to the rule of law should understand.”

The Trump administration has now taken this baiting strategy to the Supreme Court, too. Late last month, the DOJ submitted an application to the court’s emergency docket asking the justices to intervene and stay Murphy’s order.

However, in the application, Solicitor General John Sauer misconstrued the contested order by not mentioning that the administration violated the judge’s previous order and not specifying that the bulk of the order was based on the DOJ’s suggestions.

Instead, Sauer accused Murphy of “forcing the government to detain [the men] at a military base in Djibouti not designed or equipped to hold such criminals,” adding that the judge’s order is unlawful and “jeopardizes the public interest.”

Presenting the order in this way puts the Supreme Court in a difficult position. Justices will either uphold Murphy’s order and protect the men’s rights — which will surely invite another salvo from Trump and his allies — or  rule in Trump’s favor and allow him to erode due process.

It has yet to be seen whether this transition to performative, engineered court fights will significantly sway public opinion against the court. But so far, Trump’s effort to undermine the judiciary hasn’t swayed Americans. Large majorities still believe Trump must respect the authority of federal courts and are more likely to think that the president, rather than the courts, is overstepping their power.

This strategy is also unlikely to lead to legal victories. However, Anthony Michael Kreis, a law professor at Georgia State University, told Democracy Docket that for the Trump administration legal wins may be secondary to the political victory of creating enemies out of judges.

“I think they are brewing for a fight. They want the fight, and they want the chaos,” Kreis said. “To the extent that the facts and the law don’t work for them, I don’t know if they care so long as they get the fight out of it.”