Many Americans think public opinion will protect the judiciary from executive overreach. Evidence from other democracies suggests otherwise.
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This June, news broke that a senior Department of Justice official, Emil Bove III, “told subordinates that he was willing to ignore court orders.” According to a whistleblower complaint filed by a department lawyer, “high-level governmental personnel knowingly and willfully defied court orders” and “directed their subordinate attorneys to make misrepresentations to courts.” The lawyer has since been fired, while Bove has been nominated to become a judge on a federal appeals court.
The whistleblower’s complaint underscores a pattern within the Trump administration of challenging the judiciary’s power—in particular, by disobeying court orders on immigration-related cases. Now, a senior legal official’s alleged willingness to defy the courts raises an urgent question: If the president and his team refuse to comply with court orders, what will stop them?
For many Americans, the answer to this question hinges on public opinion—on the idea that the American people would not support a presidential power grab. In a survey this June, 81 percent of U.S. adults agreed that the Trump administration has to follow court orders. A minority of 19 percent thought that the administration should treat court orders as optional. Americans might therefore think, as one expert argued, that there is “very little public support for Trump to claim an even more assertive and powerful version of the presidency” and that public opinion provides a strong safeguard against executive overreach.
Unfortunately, evidence suggests otherwise. While the public may disapprove of curbing the courts in the abstract, in practice citizens around the world have often supported their president’s attacks against the judiciary. In many democracies where political leaders have challenged the courts, from Mexico and El Salvador to Turkey, public opinion is rarely a powerful guardrail protecting the judiciary against an executive power grab. Instead, a much more potent safeguard for the courts is societal mobilization.
Two key dynamics explain why public opinion is usually insufficient protection for the courts. The first is that even when voters value democratic principles like checks and balances, they usually care more about concrete policy issues, such as immigration, crime, or the economy. Most citizens are policy voters first and democracy voters second.
In many embattled democracies, political leaders leverage popular policies to turn public opinion against the courts. These leaders often follow a common strategy—what I call “court-baiting.” That is, to undermine public support for the judiciary, political leaders adopt policies that are popular but very likely illegal. When courts then rule against the executive, the executive uses the unpopularity of the ruling to condemn the judiciary for obstructing the “will of the people.”
This strategy enables political leaders to weaken the courts by exploiting the fact that many voters prioritize policy preferences over democratic principles. In Mexico, for instance, former President Andrés Manuel López Obrador won a mandate for curbing the judiciary by attacking the Supreme Court’s decisions to block popular but almost certainly illegal policies, such as giving the military control over the National Guard. In Turkey, then-Prime Minister Recep Tayyip Erdoğan won widespread support for overhauling the judiciary by attacking a court decision against a popular policy expanding the rights of Muslim women.
In the United States, the Trump administration is following this court-baiting playbook by clashing with the courts in numerous cases involving immigration. Immigration is a powerful issue for driving a wedge between voters and the courts, precisely because immigration is the president’s most popular issue. It is likely no accident that Bove, the senior Department of Justice official, allegedly said he was willing to ignore court orders “to fulfill the president’s aggressive deportation campaign.”
Public support for the president’s immigration policies often trumps support for the courts. When asked in the abstract, 82 percent of U.S. adults think that the president “should obey federal court rulings even if he disagrees with them.” But when asked specifically about immigration, 40 percent of adults and 76 percent of Republicans agree that “Trump should keep deporting people despite a court order to stop.” When forced to choose, many citizens care more about immigration policy than the democratic principle of following court orders.
The second reason why public opinion only weakly protects the judiciary is that citizens typically support their preferred political leader or party much more intensely than they do the courts. Most people have entrenched, deeply held views about their country’s president. But citizens think much less about—and rarely have a deep attachment to—the courts. Even when citizens genuinely support an independent judiciary, they often have a stronger allegiance to a political party or leader, especially in polarized societies like the United States.
As a result, even when the public disapproves of curbing the courts in the abstract, citizens have cheered on their president’s attacks against the judiciary. El Salvador offers a striking example. Before Salvadoran President Nayib Bukele rose to power, citizens overwhelmingly supported an independent judiciary. In 2018, 83 percent of Salvadorans affirmed that even during very difficult times, it was “not justified” for the president to dissolve the highest court.
Yet El Salvador’s President Bukele did exactly that—firing all the judges on the Constitutional Court as well as the independent attorney general in 2021. In a stunning about-face of public opinion, over 70 percent of citizens supported Bukele’s dismissal of the judges and attorney general. Even though the vast majority of citizens stood behind the courts in theory, this support was weak in practice: Citizens supported their president more than their democratic institutions.
In the United States, where 55 percent of adults disapprove of President Trump, it is unlikely that the president could achieve majority support for overriding the courts. But among self-identified Republicans—89 percent of whom approve of the president—support for Trump may run deeper than support for a court ruling that constrains the administration’s immigration agenda.
What, then, is more reliable than public opinion for defending the courts against attack? Other democracies reveal that a powerful protector for the judiciary is societal mobilization—coordinated actions by civil society organizations, public officials, businesses, and citizens to oppose an executive power grab. Because societal mobilization requires organization and effort, it demonstrates a much firmer commitment to protecting the courts than individual responses to a survey.
Other countries show that broad societal mobilization can thwart attacks on the judiciary. For example, in Israel in 2023, when Prime Minister Benjamin Netanyahu’s government announced sweeping changes to curb the power of the judiciary, numerous sectors of society—from trade unions to tech leaders—mobilized to sustain large-scale, long-term protests. Israel’s top law firms and law professors coordinated to condemn the government’s attack on the courts. Business leaders and economists warned of dire consequences for Israel’s economy. Military reservists even threatened not to serve.
In Israel, this societal mobilization protected the judiciary not because it changed the prime minister’s mind but because it empowered other actors to stand up to the government. The protests pushed a key figure inside the government, Netanyahu’s defense minister, to call publicly for suspending the contentious judicial plan. Widespread societal mobilization also gave Israel’s Supreme Court greater legitimacy to strike down a law overhauling the judiciary.
Other democracies similarly demonstrate that broad societal mobilization can defend the rule of law against attacks. In Brazil, former President Jair Bolsonaro threatened to impeach judges, defy a judge’s rulings, and even close Brazil’s highest court. Yet a multi-party coalition coordinated to defeat Bolsonaro via elections.
In the United States today, as the president tests the legal limits on his power—whether in cases over immigration or in the more than 315 lawsuits filed against the administration—other democracies offer a lesson: Public opinion alone will not safeguard the courts. But broad societal mobilization can.
– Andrew O’Donohue is the Carl J. Friedrich Fellow in Harvard University’s Department of Government and a non-resident scholar at the Carnegie Endowment for International Peace. Published courtesy of Lawfare.
