Tim Kipp is retired from 39 years of teaching U.S. history. He has been a political activist since the 1960s, including draft and war tax resistance and advocating peace and environmental issues. He is one of the founders of the Vermont Progressive Party, is a longtime field organizer for Sen. Bernie Sanders, and is currently active with the Vermont Indivisible movement.
BRATTLEBORO-The Trump-Republican coup d’etat is mutating into a more virulent and pervasive form of authoritarianism.
In the previous nine years in and out of power, the regime has made wise use of its experiences to advance its anticonstitutional agenda. The emergent characteristics are self-evident and menacing — the welding of the political and economic state, hypernationalism, militarism, cult of personality, and subjugation of the legislative and the judicial branches.
In his influential book How Fascism Works: The Politics of Us and Them, Jason Stanley accentuates the need for a fascist regime to destroy the independent judiciary and replace it with a legal facade subservient to the autocrat’s will. Classically, then, the leaders become the state.
Given that Trump is intellectually, ethically, and emotionally ill-equipped for his job, he requires constant care and feeding. Consequently, this empty vessel — or, more accurately, colander — needs others to do his thinking for him.
Once this vessel is full, Trump is converted to a cipher, transmitting ideas to the public arena. His brain trust and choreographers — toadies like Stephen Miller, Russell Vought, Susie Wiles, Elon Musk, and Steve Bannon — are quite well known.
Behind the curtain lurks an éminence grise, a ghost from Nazi Germany: Carl Schmitt, an influential judicial theorist and propagandist in Hitler’s regime.
Dormant for decades, Schmitt’s ideas have been resuscitated and drafted into service by Trump’s masterminds, in particular Miller and Bannon.
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This silent partner in the demise of democracy, Schmitt believed an all-powerful head of state is the ultimate source of authority and law, with the judiciary expected to align with and satisfy the regime’s political cravings.
In Schmitt’s view, all the leader’s discretionary powers should prevail over all other functions of government.
In such a world, the U.S. constitutional principles of checks and balances, popular sovereignty, and consent of the governed are turned downside up. The leader should not be subject to the will of the unreliable volk or to the rule of law; rather, the people should embrace the autocrat’s infinite wisdom and benevolent guidance.
Schmitt was especially enamored of Article 48 of the German constitution that gave the ruler the power to declare “emergencies,” enabling him to override or ignore acts of parliament.
Contrary to the principles of John Locke and James Madison embedded in the U.S. Constitution, Schmitt opines that if the ultimate legitimate source of power resides with the head of state and not with the people, it logically follows that the other key elements of government, the legislative and judicial branches, must also be subservient to the executive.
The history of the Trump regime’s relationship with the judiciary conforms seamlessly to Schmitt’s legal philosophy and theories of governing.
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Thomas Jefferson raised concerns about the judicial branch’s potential for exercising too much power.
In the 1803 landmark Marbury v. Madison case, Chief Justice John Marshall unilaterally contrived the legalism “judicial review,” giving the high court the sole authority to declare a law unconstitutional.
Such power, Jefferson averred, would give this unelected branch unanswerable command over an elected branch. Such a disruption of checks and balances would hobble or outright exclude the power of citizens in the legislative process.
In 1804, Jefferson wrote to Abigail Adams that Marshall’s ruling had so intruded into the legislature’s and executive branch’s respective spheres that it “would make the judiciary a despotic branch.”
After seeing the consequences of this ruling on subsequent cases, in 1819 Jefferson wrote to a colleague, Judge Spencer Roane. The former president minced no words. “If this [the Marbury decision] be sound, then indeed is our Constitution a complete felo de se [suicide pact]. [...] The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
To Jefferson, it was the citizens through their elected representatives who should retain the right to determine a law’s constitutionality. To that end, the high court did not exercise judicial review for the next 50 years, until the infamous Dred Scott decision of 1857, which accelerated the coming of the Civil War.
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In the mid-20th century, the Supreme Court charted a liberal detour from its conservative traditions. From 1954 to the early 1970s, Chief Justice Earl Warren navigated the court through a turbulent expansion of voting, civil liberties, women’s rights, and civil rights.
A predictable conservative backlash ensued — one that has survived to this day — with Richard Nixon’s presidency and his appointment of four justices to the Supreme Court, including influential ultraconservatives William Rehnquist and Lewis F. Powell Jr.
Not by coincidence, in 1971, two months before Powell was appointed, he authored, at the behest of the U.S. Chamber of Commerce, a call to arms for corporate America to reassert its rightful leadership role in the political economy.
The “Powell Memo” (titled “Attack on American Free Enterprise System”) outlined, in breathless terms, how liberals were destroying the country with their relentless attacks on the free enterprise system. Powell’s call included a grand blueprint imploring capitalists to fund and organize long-term campaigns — public relations, think tanks, lobbying, and educational networks to defend and promote corporate prerogatives.
Powell emphasized that controlling the ideological complexion of the high court would be essential. This concept would become a crucial inflection point for the later development of the Trump-Republican coup’s targeting of the judicial system.
If Jefferson’s fears and Schmitt’s desires were valid, the courts would need to be transformed.
To validate the rebranding of the Supreme Court, the coup’s overseers needed to glaze over their intentions with a patina of legal theory. Thus, the “unitary executive theory” was advanced. This judicial supposition, of questionable validity, long remained lifeless until Antonin Scalia joined the court in 1986 and then John Roberts joined him in 2005.
This theory asserts the Executive is a coequal to the other branches as an interpreter of the Constitution because the president is obliged under Article II, Section 3 to “faithfully execute” the laws. The theory holds that any office or agency within the Executive Branch must be deferential to the will of the president, fundamentally conflicting with the spirit of checks and balances.
One can detect a whiff of Carl Schmitt here.
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The next essential tactic in this consolidation of power is the augmentation of executive authority by manufacturing a supermajority on the Supreme Court.
Genuflecting to the Powell Memo, the Federalist Society, a powerful right-wing organization, used one of its front groups, the Judicial Crisis Network, to implement a long-term strategy.
Leonard Leo, the founding director, concocted a highly complex funding, recruiting, and training matrix to flood the court system with ultraconservative — now labelled “MAGA” — jurists.
Using millions in unaccountable “dark money” in a financial spiderweb of disguised contributions, Leo deployed funds, estimated at up to $580 million between 2014 and 2020, to recruit, groom, and lobby their candidates to the federal bench.
As a result, some 5,000 of Leo’s lemmings are in the national judicial system. Glaring successes are the blocking of Obama Supreme Court nominee Merrick Garland’s Senate confirmation hearing and the anointment of Trump nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court.
This is all well known. What is not well known is the actual admission fee paid to play.
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After 20 years, Chief Justice John Roberts continues to wield a Republican majority and, since Trump’s first term, a 6-3 supermajority. He has engineered one of the most reactionary judicial records in U.S. history, arguably exceeding even the Lochner era court of the 1890s–1930s, so renowned for its unabashed pro-business, laissez-faire, antiregulatory posture.
Roberts and his majority have consistently enfeebled or abolished corporate regulations, campaign finance, and voting rules, and rolled back women’s, workers, and minority rights. Simultaneously, these legal magicians have inoculated Trump with imperial powers of immunity.
In Trump v. United States this historically egregious ruling holds that any presidential action deemed an official duty can go unpunished. In her dissent, Justice Sonia Sotomayor wrote: “In every use of official power, the President is now a king above the law.” In hers, Justice Ketanji Brown Jackson described the ruling as a “five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.”
Energized by the cheerleading Roberts court, Trump’s judicial activists are now eager to abolish a 1935 ruling, Humphrey’s Executor v. United States, that prevents a president from firing members of independent agencies such as the attorneys general.
By December of 2025, nearly 300,000 federal employees were forced out of service.
Another legalism to politicize the Supreme Court is the manipulation of the court’s schedule, its docket. As in other aspects of Trump’s reign, his handlers have offended the constitutional provision that enables a president to use “emergency” powers.
The Supreme Court’s emergency docket, in ethical hands, is used to expedite rulings in circumstances such as natural disasters, foreign crises, and desists (stop orders). Now misused in such record-breaking numbers by the Roberts-Trump team, a new term — the “shadow docket” — has emerged.
This antidemocratic maneuver uses the emergency docket to bypass regular deliberative court procedures such as oral arguments, transcripts, or written decisions.
While the Roberts court fully obliges, the court’s third liberal dissenter, Justice Elena Kagan, wrote, “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”
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Recall Powell’s insistence in his memo that the Supreme Court undergo an ideological transformation because all roads eventually lead to the high court. Today, the radical right occupies the bench where these robed barons continue, via legal machinations, to restore democracy by whittling it away.
They are joined by a corporate-dominated legislature led by a cult masquerading as a political party in tandem with a mostly ineffective opposition party that appears to stand for little more than re-election.
Combine this with Donald Trump, and you get a kakistocracy, a government by the least qualified, most unscrupulous, and downright malevolent. (The etymology of the word predates the Trump era by hundreds of years, but its popular usage soared during his first term.) Our royal wannabe swindles and gleefully swings his wrecking ball into all that remains democratic and decent in our society.
The three pillars of government have fractured and, not so ironically, one of these pillars, the Supreme Court, presides over the destruction of the entire foundation — the rule of law.
With the legislative and executive branches in disarray and the judiciary colonized by extremists, this oligarchy may evolve into an American-style fascism. Key elements of authoritarianism are in place, so the question is open to honest debate.
However, while we debate, we should continue to resist and prove history wrong.
This Voices Viewpoint was submitted to The Commons.
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