The Courts Aren’t The Cavalry; We Are

So, what are WE going to do?

Lots of people are talking about early wins in court. I wanted to take a moment to clarify exactly what we are looking at.

If you’re one of the stalwarts who makes it through the newsletter every day, you probably already know what I’m going to say. Yes, pro-democracy forces are winning in just about every case that has been filed so far. But these cases are in an early, preliminary, procedural stage. Courts aren’t yet ruling on the substantive merits of the cases; they aren’t ruling on whether any of the challenges to how Trump and Musk are conducting affairs of government will ultimately succeed.

Federal judges across the country have entered a flurry of temporary restraining orders (TROs) designed to freeze the status quo in place while the litigation gets started. To get a temporary restraining order, the plaintiffs who are challenging actions by the new administration have to convince the judge that there’s a strong chance irreparable injury to their rights will take place without the freeze.

That’s why the judge in the impoundment case ordered the Trump administration to restore congressionally allocated spending they had frozen. It’s why multiple judges in the birthright citizenship cases told the administration it can’t deny newborns their rights for now. It’s not clear any of that will survive once we get to the point where courts consider longer preliminary restraining orders, which require a greater quantum of proof and more formal proceedings. Those proceedings will also undoubtedly be followed by appeals to higher courts by the Trump administration if it loses.

There are limits to how much the courts can or will do, even at the TRO stage. We saw judges reject requests because the parties in front of the court didn’t have standing, the necessary connection to a case to file suit (explained in the context of the mifepristone medication abortion case here). There are legal limits on these cases. And in the case that is (oh, the irony) pending before Judge Tanya Chutkan in Washington, D.C., the Judge declined to shut down all DOGE operations in a hearing Friday. She acknowledged the states’ concerns about the “unpredictability” of Musk’s operation but indicated that entering a TRO against everything he is doing seemed too broad, exceeding the level of irreparable injury the plaintiffs’ evidence demonstrated. Even at this early stage, the courts can’t provide a complete and total remedy for every disturbing act Trump commits or enables.

That’s not to say I don’t have confidence in the courts, because I do, and I think some progress will be made there, although as we know far too well, it may be very slow. But the courts aren’t the calvary. We are. We have to be in this fight for ourselves. We can’t get complacent. These early victories are important, but they are not ballgame. Just because it doesn’t feel like we’re in the middle of a constitutional crisis—Trump isn’t dramatically crossing out broad swaths of the Constitution with his sharpie marker in a made-for-television moment—doesn’t mean we aren’t there.

The courts can impose some restrictions when Trump exceeds the bounds of law. But if it’s “just politics”—or, problematically, if five justices on the Supreme Court believe it is—then it’s up to us, the voters, the citizens of the United States. There is a midterm election coming, and if your elected representatives aren’t working for you, now is the time to start doing something about it. No one thought, when they got into the race, that Senators Ossoff and Warnock could win in Georgia. But they did.

Ultimately, we’re the check on power run amuck. That means awakening slumbering moderate Republicans in Congress, stirring up the voters for the midterms, and keeping a public spotlight on the excesses of this administration, which has helped to rein them in as much as anything else right now.

If you need some ideas for getting started, the good folks at Choose Democracy have some advice. They suggest getting started with a local group and figuring out where there are weak links in MAGA support you can pressure. They suggest devoting yourself to a longterm project you can support. Other groups are organizing a variety of public protests and blackouts. Different ways of speaking up will work for different people. Pick yours. Make sure your voice counts. Start exercising your democracy muscles!

Taking your kids to vote, even, perhaps especially, in local races or primaries is a good way to build the pro-voting culture we want. (That’s my husband with all four of ours in tow, including one who wasn’t old enough to vote yet).

Earlier this week I wrote to one of my senators to ask her to reconsider before voting for Kennedy. She didn’t, but I did get a form letter back. I expect more than that from my senator when she votes for a man who vaccinated his own kids but doesn’t want you to vaccinate yours, particularly in an environment where the administration is gutting public health as we watch bird flu become more transmissible. Fortunately, I’m not alone. There are groups of people like me who are committed to making our senators do more than just send form letters, even if that requires persistence on our parts. Sadly, her response to me came from a “do not reply” email account, which makes it more difficult to ask a senator for follow-up, but I think I’m up to the challenge.

We have to find ways to do this because if all MAGA hears are self-congratulatory voices proclaiming their success, it’s a lot easier for them to kowtow to Trump’s every demand. It becomes more difficult—because these folks are politicians who are dedicated to staying in power whatever the cost—if they’re getting pounded by thousands of voices of sanity about their obligations as elected representatives. Let’s make them understand that we are here, we are engaged, and we are not going away. It would have only taken a few senators getting cold feet about Kennedy to make a difference. It’s worth pulling out all the stops and contacting your senators with the vote on Kash Patel looming ahead this week.

My take on what we need to do right now is this: stay informed about what’s happening nationally, and get engaged locally.

We’re in this together,

Joyce

Thanks for being here with me at Civil Discourse through all of this. If you aren’t already, please consider becoming a paid subscriber, which helps me devote more time and resources to this project.