Kenneth Ledford (#3: Democratic Institutions)

(Case Western Reserve University)

On May 1, 2025, the American Historical Association sued the National Endowment of Humanities (NEH) after it peremptorily terminated federal research grants. The complaint sought a declaratory judgment that the reorganization of the NEH, the firing of its employees, and the termination of grants already appropriated by Congress were all outside the legal authority of the NEH and injunctions to require the NEH to stop reorganizing, firing, and de-funding and to spend all the money already appropriated by Congress.

The AHA sought to have the court protect democracy from the overreach of administrative and executive power that would harm individuals and associations and thus harm democracy itself. The complaint construed courts as defenders of democracy. American progressives tell themselves a heroic story of courts as expanders of democratic rights and defenders of civil liberties when legislative gridlock and executive temerity failed to expand the boundaries of democracy.

Legal historians, however, have long rejected this narrative and caution champions of democracy to protect it through 21^st-century politics rather than by legal interpretation. Like the French National Assembly on August 4, 1789, they see courts as too often undemocratic or even anti-democratic. In this vein, I want to suggest three reasons why we should be modest in our expectations that courts alone will be the democratic institutions that thwart fascist or authoritarian challenge.

First, courts reflect the liberal commitment to procedural over substantive law. The AHA complaint relies primarily on the 1946 Administrative Procedure Act (APA) which creates a process for an agency to propose a rule, provide a reasonable public comment period, explain how it has considered those comments, and give reasonable notice before the rule becomes final. The APA is about the process of making administrative law, and the Trump regime did not follow it. But court intervention under the APA could only provide short-term protection against reorganizing, firing, and de-funding, for the Trump regime could follow the steps of the APA to promulgate a newer, even harsher administrative rule. A procedural decision does not settle the underlying issue, which is a substantive issue of whether the action taken is permissible.

Second, courts lack power to enforce their judgments and pronouncements; that power resides in all except the rarest cases in the executive. When the executive declines to enforce a judicial decree, the order of the court is powerless and the norm of deference to judicial decisions meaningless. In addition, the Trump administration has cited unproved and likely non-existent “emergencies” to justify its hasty actions, and with the state of emergency, we enter the realm of Carl Schmitt, a most hostile space for democracy.

Third, the composition and selection of the judiciary and the relatively autonomous ideology of legal professions a whole should moderate confidence in the likelihood of courts protecting democracy. Legal education socializes professional newcomers into a conservative view of the role of the judiciary. It is not the role of the judge to create law, but to find and apply law to concrete fact situations proven by the litigants. In the United States, the cost of legal education selects for social groupings with more conservative political views. Further, the Federalist Society since 1982 has not only served as a conveyor belt for right-wing recruits to the federal judiciary, but also to radical legal theories in the legal academy, which, in the name of democracy, challenge the legitimacy of administrative law altogether and which propagate a doctrine of originalism that freezes notions of democracy in 1787. Building from these institutional and intellectual foundations, Republican administrations have for 45 years selected federal judges, and Supreme Court justices, in a consciously ideological fashion, resulting in a shocking tolerance for procedural irregularity, invention of monarchical doctrines of criminal immunity for the executive, and a willingness to depart from long-accepted norms unimaginable only a decade ago.

American observers of the trajectory of the Trump administration increasingly draw from German precedents to analyse and warn about the actions that the AHA resorted to court to challenge. In addition to Schmitt’s theories of the state of emergency, Ernst Fraenkel’s account of the Dual State draw interest. Fraenkel’s account warns us that the normative state, one in which procedural norms, especially in private law, can continue even alongside the prerogative state, in which norms dissolve altogether.

Certainly, despite these cautions, a normative system of procedural regularity is a better, even if fragile, guaranty of democracy than a chaotic system of arbitrary and capricious decision-making. But as we face forces that disdain procedural regularity, we must be realistic and modest about our faith in courts as institutions to provide effective defenses of democracy. That substantive protection lies in politics and direct action.

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