Judge Paula Xinis had reached her limit. She invited the lawyers of Kilmar Abrego Garcia to seek contempt of court sanctions against the Trump Administration. She’d “gotten nothing” from the Administration as far as complying with a court order to ensure the return of Abrego Garcia to the United States. Abrego Garcia, a Salvadoran man living in Maryland, was one of more than 200 people the Administration had renditioned to an infamous prison in El Salvador, raising serious questions of fairness. Abrego Garcia was sent there despite an existing order not to remove him. (He was later moved to a less harsh facility after weeks of intense worldwide media coverage and before a visit by Maryland Democratic Senator Chris Van Hollen.)

On television, the President’s aides had insisted they would never lift a finger to get Abrego Garcia back, absurdly claiming that the Supreme Court had approved Trump’s decision to remove him from the country. In fact, the Court had upheld Judge Xinis’s preliminary ruling that the Administration should “facilitate” his return and ordered that it provide Abrego Garcia with the due process he would have received had he not been illegally removed. But as far as the aides were concerned, Abrego Garcia should never have been in the United States in the first place, and they had suggested that if they were ordered to bring him back, they would simply stop him at the border and send him to another country. Inside Judge Xinis’s courtroom, government lawyers argued that judicial review of the rendition decision interfered with the President’s powers over foreign affairs and his responsibility to safeguard the nation’s security.

After that moment of high legal drama and an enormous public outcry over the case, the Trump Administration switched tactics, deciding to bring Abrego Garcia back to the United States. But the Department of Justice immediately charged him with human trafficking—charges that Abrego Garcia’s lawyers insisted were fabricated—while the Administration threatened to deport him to countries including Uganda and Eswatini. Proceedings churned on.

In courtrooms across the country, a similar scene has played out in other cases challenging Trump’s policies. While frustrated federal judges have demanded answers, government lawyers have vigorously defended the President’s unilateral actions to round up migrants, arrest and deport student activists, cancel visas for more than 6,000 foreign students, block research funding for certain universities, impose emergency tariffs, and deconstruct the modern administrative state.

Sometimes, judges have moved swiftly and even gotten concrete results. A Tufts University student arrested in the streets of Somerville, Massachusetts, after penning an op-ed on the war in Gaza was ordered released on bond pending appeal of a ruling that said her First Amendment rights had been violated. The Trump Administration complied. More than one federal judge has ruled that Trump has exceeded the terms of the Alien Enemies Act, the eighteenth-century wartime law that the Administration has used to justify many of its deportations to El Salvador. Others have found that many of Trump’s directives to fire government employees and efforts to hollow out administrative agencies have violated federal law and the principle of separation of powers.

At other times, court proceedings have lagged behind the Administration’s actions. In the case of the dismantling of the U.S. Agency for International Development, critical funding was cut off to desperate grantees around the world, leases were canceled, and the name of the agency was removed from its headquarters before any meaningful litigation had occurred. On the hardest issues involving the most disputed questions, lawsuits continue to wind their way toward the country’s apex court—and uncertain resolution. As of late September, more than 400 cases had been filed against the Trump Administration, and counting.

Despite the mixed results, for now a deep reverence for judicial review has reasserted itself across the land. Poll after poll shows that Americans believe that a President should obey the courts, even if many paradoxically also want leaders who will break some eggs to make big changes. But what in fact is the role of courts in a democracy in a deeper sense? In our view, ensuring the survival of democracy in a populist age turns on this crucial question. Having realistic expectations of what judges can do to help and a clear understanding of how their involvement can be counterproductive is essential to minimizing unconstitutional harms and clearing pathways for the political mobilization that can truly heal democracy.

Judges and Their Limits

Broadly speaking, there are two perspectives on judges. Judicial optimists, who rarely shy away from maximalist assertions of judicial power ostensibly aimed at saving democracy, cheer as judge after judge blocks an executive order or lambasts a government lawyer for stonewalling. Especially when a vulnerable minority is targeted or when one party holds all or most of the reins of power, judicial review often seems like the only recourse available. For some observers, such as Harvard law professor Noah Feldman, courts’ active resistance to Trump’s orders proves that they are “the last bulwark” in defending American democracy and that “the fate of the constitutional republic depends to a large degree” on them.

Judicial pessimists, on the other hand, warn that judicial review has frequently led to anti-democratic outcomes. For them, the courts are a serious part of the problem. Professors Samuel Moyn and Ryan Doerfler warn that “Idealizing courts as the last and most important line of defense of Congress’s laws is both foolish and irresponsible.” For one thing, 30-plus years of Republican presidents filling the Supreme Court with Federalist Society-approved jurists has killed the dream of legal transformation through the courts. More generally, the filing of more lawsuits just means more opportunities for judges to issue rulings that could hasten an authoritarian turn or create lasting impediments to democratic renewal. Complex judicial doctrines can serve as speed bumps to coalition building and implementation of valuable policies. Overreliance on judicial review thus often leads to more byzantine legal rules and narrower ideas that slow the work of democracy and demoralize voters. How can judges who regularly unsettle democratic compromises, strike down civil rights laws and campaign finance regulations, and lack any coherent vision of democracy be counted on to help save democracy?

So, the question hangs in the air: How long can judicial resistance last when it is to come from unelected lower court judges, if it comes at all? We believe that the momentary flurry of judicial activity is fool’s gold. The more important question, and one to which we do not yet know the answer, is how Trump’s disputes with judges will play out in the Supreme Court or where it matters the most—with the electorate as a whole. The signs so far certainly aren’t comforting: The justices have used their emergency docket to dissolve a lower court order and permit the mass firing of employees of the Department of Education, without giving any explanation for their decision. They have also restricted the use of universal injunctions, which will make it easier for the justices to discipline lower court judges who get too creative with their remedial powers. And they have been in no hurry to reach final rulings about the legality of Trump’s decision to create DOGE out of whole cloth and allow Elon Musk and a small circle of allies to dismantle large parts of the administrative state without legislative approval. Meanwhile, we don’t know how voters will react if Trump ratchets up his conflict with the judiciary when he loses in court. Part of Trump’s populist strategy is to deny that lower courts can legitimately force him to do anything—when asked, he always says he would obey “the Supreme Court.” A similar sentiment is echoed by Cabinet officials, who typically refuse to say whether a single judge’s order will be obeyed.

Democratic activists must therefore chart a realistic middle ground when it comes to reliance on the courts, one that accounts for what judges can and can’t do and avoids creating more democratic traps for the future. Though law will continue to play a prominent role, we contend that it can protect democracy only up to a certain point, and only in conjunction with political activism and elections. For history shows that a populist leader is likely to escalate conflict with the courts rather than back down, and that judges alone cannot save democracy.

Returning to the critiques of the judicial pessimists, we believe they get some things right. It is true that judges have often been part of the problem and only rarely part of the solution. For long periods of history, the Supreme Court has done next to nothing about deeply undemocratic and unfree practices—and when the justices have acted, they have at times undermined the Reconstruction Amendments’ promise of a free and equal democracy. Additionally, judicial pessimists are correct that judges do not agree among themselves on a theory of democracy, much less what is harmful or beneficial to self-government. The Supreme Court rarely speaks with one voice; on the contrary, what the justices say is often fractured and contradictory. Strong judicial review therefore presents an ever-present problem for democracy.

What the pessimists overlook, however, is that there are a handful of tasks judges are quite capable of performing, and they have the protocols and norms in place to do so reasonably well. Those tasks consist of taking evidence, sorting truth from fiction, giving everyone a fair hearing, and rendering decisions that can be understood by ordinary citizens. When the stars align, judges can speak in a voice that is grounded in tradition and experience and sounds different from those primarily driven by partisan or personal gain.

What judicial optimists get right is that judges do have a role to play in preserving constitutional self-government, provided that the role is modest rather than militant. What optimists ignore, however, is that judicial review has contributed to the rise of populist figures like Trump—and has even led to rulings that exacerbated the underlying conditions that fuel populism. When the courts agree with the plaintiffs and block a government policy, it means that one sector of the community has prevailed, often at the expense of a significant part of the community that desires decisive action. An overly active judiciary, even if its rulings are plausible and conducted in good faith, frustrates political sentiment, which is then likely to grow, fueling even greater tolerance for norm- (and sometimes law-) breaking. For instance, the Supreme Court’s decisions to establish a right to abortion and to ban state leaders and public school teachers from displaying religious symbols for religious purposes have given conservatives potent goals around which to organize. The evangelicals who are motivated by these issues have been counted among Trump’s most reliable supporters. Similarly, the Court’s rulings striking down campaign finance reforms have demoralized progressives and younger voters and solidified oligarchic influence at the highest levels of government.

Let’s acknowledge that there are certain things judges cannot accomplish. They cannot stop all or most of a President’s policies, much less those of a President who has fashioned himself into a populist leader. Litigation is a cumbersome and expensive process, and judges have only a small set of remedial powers with which to encourage compliance. Most of the time, judges must count on the persuasiveness of their decisions alone, knowing full well that populist leaders may push the envelope even after losing a court case.

For these reasons, pro-democracy forces will have to choose their fights carefully to highlight the truly urgent rule-of-law issues—ones that most Americans can see value in defending—rather than isolated and more fraught incidents that are likely to stretch already frayed political bonds. This is also true of judges who might wish to serve as pro-democracy allies. Trying to do too much, in too many controversies, is likely to dissipate any clarifying power a ruling might have and give a populist leader additional angles to exploit and fresh “enemies of the people” to denounce.

It is also important to note that judges are poorly suited to the task of preserving democracy for demographic reasons. While federal judges enjoy a strong measure of independence guaranteed by the Constitution, they are still selected through partisan-controlled processes rather than professional or meritocratic ones. This does not make them partisan knife fighters or loyalists in the usual sense, but it does mean that their conception of democracy and what it needs to survive will be largely shaped by their party’s philosophies and priorities. Most are not movement judges—that is, judges who come out of social movements or align themselves with particular causes. If they are persuaded to rhetorically endorse key principles or values, to fight back against an autocratic President, or to reject the goals of social groups with which they might be sympathetic, it means they have been shaken out of their usual preference to coexist with others in their social milieu. Understanding the disposition of the typical judge shows that litigation is a risky tool for perfecting democracy.

Judges—especially those serving on a nation’s apex court—can also make things worse by resolving issues in ways that do more harm than saying nothing at all. Courts can render grievously wrong and even tragic rulings that worsen the prospects for reform by demoralizing pro-democracy forces, encouraging new lines of constitutional attack on reforms, or insulating autocratic actions. Think of Dred Scott, which tried to constitutionalize white supremacy by excluding all African Americans from citizenship; decisions deploying “free speech” to undermine campaign finance regulations and union organizing; rulings entrenching felon disfranchisement; or the many decisions in recent decades watering down the mission of the Voting Rights Act. Perhaps most dramatically, the lawfare to hold Trump criminally responsible for alleged misconduct that occurred both during his time in office and when he tried to retain that office by sparking an insurrection simply persuaded the high court to expand absolute immunity for presidents and stymie efforts to enforce the anti-insurrection clause against Trump. Having survived those skirmishes and even wrung beneficial rulings out of them, Trump has emerged more pugnacious than ever.

Even when the justices think they are acting reasonably, a right-wing populist is likely to exploit their rulings by exaggerating their scope or meaning. When the Supreme Court during Trump’s first term approved a version of the President’s travel ban after it had been repeatedly pared down, Trump declared the ruling a vindication of his promise to ban Muslims from the country. In the end, the litigation efforts highlighting Trump’s frequent xenophobic and racist rhetoric did not disqualify him in the eyes of voters. Those efforts to tar Trump may have even given him a vehicle for claiming that, once again, his opponents cared more about identity politics or open borders than the security or material concerns of average Americans.

What Judges Can Do for Democracy

That brings us to what judges are capable of doing for democracy. Broadly speaking, judges are at their best when performing two limited tasks: clarifying the democratic stakes of a fight and buying time for pro-democracy politics to form. If they can’t plausibly do both in a given controversy, the electorate might be better off if judges didn’t get involved.

First, as one of us has written elsewhere, the most effective use of judicial power occurs when adjudication facilitates—rather than substitutes for—politics. By “facilitates,” we mean that judges endorse certain democratic principles, concerns, or goals, or warn about corrosive practices, even though they might be powerless to carry out desired policies. That is, you want judicial rulings that extol the pro-democracy and rule-of-law values that an opposition party can pick up and champion, rather than decisions that rewrite policies to achieve particular outcomes. The work of courts and the organizing of pro-democracy forces can then become mutually reinforcing—not through an alliance but rather through rhetorical convergence. This approach works best when advocates are choosy about which cases to bring and when judges decide cases only if they can speak authoritatively and with one voice.

This is why litigation that challenges the rendition of illegal immigrants to another country without due process is useful, despite the political risks that come with fighting on a populist President’s terrain. The Alien Enemies Act is clear about the conditions that trigger emergency power—an invasion or incursion by a foreign country—and supporting the lawsuit isn’t about defending unchecked migration, but rather about ensuring respect for Congress and key principles like due process. Even from a high court chock-full of conservatives, it’s possible to imagine a ruling that articulates some constraints on presidents’ ability to designate individuals as bad actors and disappear them. Challenging Trump’s tariffs in court should similarly be a no-brainer, even though the prospects for a win at the Supreme Court are murkier. The danger of unchecked emergency power can be directly linked to the pocketbooks and retirement plans of voters; in such cases, the communicative gains from using a lawsuit as a vehicle to rally citizens can outweigh the risk of getting an adverse decision. Plus, it’s hard to see how Trump could make even more aggressive and arbitrary decisions on tariffs than he already has, even if the Court ultimately decides in his favor.

These areas are related in more ways than one: They highlight not just the problem of unilateral executive action, but also the risk of “manufactured emergencies”—crises that a leader fakes or exaggerates in order to engage in emergency governance. Judge James Boasberg, who earlier this year ordered an immediate halt to the deportation flights the Administration had orchestrated, has been especially effective in holding the government to account in the cases before him, repeatedly pressing lawyers in court over Trump’s public statements: “Was the President telling the truth?”

Another obvious choice for litigation is to challenge the justification for sending troops into American cities. Americans know that military vehicles in the streets are a threat to liberty. These images evoke troops clashing with civilians in authoritarian countries—deployed not to deal with a true emergency, but to crush dissent. The recent domestic uses of the military in response to exaggerated claims of disorder are deeply unpopular and have hurt local economies. In Washington, D.C., litigation coupled with an effective public relations campaign forced the Administration to retreat from an outrageous and illegal plan to appoint a new federal officer with complete control over the D.C. police department.

Of course, employing lawsuits to highlight democratic values is not risk-free. With respect to the tariff issue, for instance, a President’s power is not clearly cabined in the statute itself, which means that the justices might very well read such statutory silence as affording a President room to act. Some statutes are more carefully worded than others, and often ambiguity is intentionally included to give presidents leeway and legislators deniability. And there is another pitfall: Judges won’t stick their necks out for long to hold the line on abstract principles like the separation of powers if Congress doesn’t show the guts to protect its own prerogatives. A glaring example can be found in foreign affairs, where the Constitution originally envisioned shared powers for the President and Congress (for example, treaty making and war making). Decades of presidential assertiveness, congressional acquiescence, and judicial deference have made it far less likely that the Court will impose constraints on presidential adventurism, even when doing so might facilitate consultation and accountability.

The second and most valuable thing that judges can do is buy time for democratic politics to reassert itself. Time is a precious resource in a democracy: It affords the opportunity for reflection, the chance to recognize danger and react appropriately by building bridges and defenses. Judges can buy time in a multiplicity of ways, whether through procedural decisions in an ongoing lawsuit or through careful substantive rulings. Recognizing the value of time, and the fact that sometimes a populist President wants a ruling that validates unprecedented behavior, opens up a whole range of possibilities.

During his first term, Trump tried to depress Democratic representation in Congress by adding a citizenship question to the 2020 census. At the last minute, the Roberts Court blocked the scheme on procedural grounds; the justices said that the Commerce Secretary had the power to ask about citizenship, but that the reason given for doing so was “contrived.” Facing a deadline to begin printing questionnaires for the census and the possibility of chaos if they pressed forward, the Administration backed down. In its most recent term, the Supreme Court delayed addressing the merits of Trump’s executive order on birthright citizenship by tackling only the abstract question of universal injunctions. This choice to buy time was not a travesty. Lower courts had already deemed the executive order a violation of the Fourteenth Amendment, and no child born on U.S. soil to an undocumented mother has yet been denied a passport or birth certificate. But the risks of democratic disaster would have been high if the Supreme Court had decided to grapple with the merits, and they remain so. If the Court were to overrule or narrow existing precedent, as the Trump Administration urges, a large number of residents would suddenly be left stateless. In the meantime, litigation plods on at lower levels. In this situation, at least for now, delay and silence from the Supreme Court leaves the constitutional principle of birthright citizenship untouched.

More broadly, the only realistic hope for rescuing democracy is for the Democratic Party to forge itself into an effective opposition party rather than a conventional party. By opposition party, we mean not just a party that fights everything Trump tries to accomplish, but rather one that is capable of blocking anti-democratic policies and marshaling general discontent to achieve lasting reform that alleviates the conditions that give rise to populist anger. This is hard for the Democrats because they largely agree with the cultural and economic changes that have occurred during the last half-century or so, which have brought prosperity and comfort to much of their base; this makes them reflexive defenders of the status quo. But to win against a populist right-wing President, they will have to move beyond “return to regular order” candidates and find ways to talk about the loss of economic opportunity for many citizens and the corrosive sense of hopelessness and cultural drift that has metastasized. They will have to acknowledge that trouble in the world has created dislocated populations, but that fair and firm immigration policies are essential because the sense of disruption that many Americans experience is a legitimate concern. They will also have to identify both structural features of the political order that must be changed and political culprits who should be blamed for profiting from the status quo. Finally, they must shake off the somnambulant attitude that “demographics is destiny”—a prediction that has clearly proven not to be so simple, with younger voters and non-white voters willing to give right-wing populism another go.

Trumpism’s enduring potency has surprised many observers, but it shouldn’t have. One lesson from history is that during a populist age, status quo politics cannot defeat a more radical agenda and clarifying voice—even if that voice comes from forces that would enact some deeply painful and exclusionary policies. An effective opposition party must reflect the public’s overpowering desire for a major course correction and demonstrate an experimental approach to policy—even if that means breaking some norms and, yes, some laws. Otherwise, the right-wing populists will have a shot at concentrating power and dominating for decades.

The alternative—to demonize no one, to be culturally popular but make no enemies—is to put one’s head in the sand while the republic burns down. The goal isn’t to reach every voter (which isn’t possible anyway), but to become a credible agent of change.

The Comparative Perspective

A comparative perspective confirms these lessons. Around the world, successful authoritarian attacks on the constitutional pillars of liberal democracy have shown that the traditional checks and balances—courts, independent electoral bodies, privately owned media, and established civil and political rights—do not inoculate societies against backsliding toward autocracy. In countries like Venezuela, Turkey, Russia, Hungary, and Poland, authoritarian governments have in recent years managed, with relative ease, to fill the courts and other guardian institutions with loyalists and to strip away these institutions’ independence.

As many authors have suggested, even the United States, the oldest modern democracy in the world, is not immune to this danger. Harvard law professor Cass Sunstein edited a book, Can It Happen Here?, with the alarming conclusion that authoritarianism has happened in the United States before, and it will again. Of course, not everyone agrees. Many authors point to the distinctive quality of the U.S. Constitution: that it has been specifically designed to prevent the rise of demagogues. By providing an extensive list of checks and balances and a range of counter-majoritarian institutions, the Constitution, in their view, counteracts the potentially disruptive sentiments of demagogues and populists. Sandy Levinson, Erwin Chemerinsky, Steven Levitsky, and Daniel Ziblatt, on the other hand, argue that the American constitutional system has long been so flawed that it represents a continuing threat to U.S. democracy. Among the main problems that they identify are counter-majoritarian features—such as the Electoral College, the filibuster rule, and the life tenure of Supreme Court justices—that together effectively allow the “tyranny of the minority” over popular majorities. These critiques are important, but a cursory look at the political science literature reveals a more fundamental point: Constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to suggest that constitutionalism is altogether irrelevant, but the findings of social scientists suggest that we should be humbler and more realistic about the role of design choices in fostering democracy.

The experience of post-communist reformers in Europe is quite telling and offers other lessons. After the Berlin Wall fell and those nations began transitioning to democracy, the reformers’ core belief was that strong constitutional courts would be the best defense against the return of repression. Unfortunately, constitutional courts in Central and Eastern Europe never had the strong support of truly liberal and democratic political parties, which appears to be essential for the courts to flourish. Without it, they were easy targets for authoritarian populists. Even Samuel Issacharoff, a leading expert on law and democracy issues and a strong defender of powerful constitutional courts, concedes this point. He writes, “[I]t is doubtful that courts can hold out for long if the institutions of democratic governance do not take root.” Under such circumstances, there is little that a constitutional court can do to stop the authoritarian drift. In retrospect, we see that the post-communist reformers placed too much faith in the courts.

For further proof that judges are not the best protection against the rise of anti-democratic forces, we need only look to pre-1933 German history. Before the Nazis rose to power, judges there had developed an early form of the Rechtsstaat (legal state), a continental European version of the rule of law aimed at ensuring a predictable legal order and the security of basic rights. Yet these judges did not even try to challenge Hitler’s power. With the establishment of a new legal principle declaring the supremacy of Hitler’s will over all written law, the National Socialists transformed the role of the Rechtsstaat and judges. Karl Loewenstein, an influential German Jewish legal scholar who settled in the United States after being forced to flee Germany, wrote in 1936 that a judge would have to be “foolhardy” to challenge the legality of Nazi ordinances, and noted that there were no known cases of a judge doing so. Moreover, most German judges agreed with the Nazis’ opposition to Weimar and shared their extreme nationalism and antisemitism.

There is a lesson here that extends beyond the Nazi experience, or the particularly evil deeds committed by that regime: Judges are drawn from among a society’s elites and cannot, by disposition or ideology, be the foundation of true or lasting democratic action. As legal scholar Gerald Rosenberg famously argued in his book The Hollow Hope, courts are largely ineffective at producing significant social change on their own. What’s more, the courts themselves likely require reconstruction, but don’t always get it until other agendas force the action.

According to a recent study, “[T]he presence of independent courts alone might not be enough to stop a government determined to curb its citizens’ rights.” More troubling, but also consistent with our view, that same study finds that constitutional rights do not even appear to be better protected in countries that have independent courts with the power of judicial review than in countries that don’t. How is this possible? The essential truth behind this riddle is that in the end, it is always up to citizens to enforce their rights. When citizens are organized through parties, coalitions, and mutual aid groups, they can fight back through civic action. Groups that inform immigrants and other marginalized people of their legal rights and notify them of escalations in law enforcement tactics can reduce harm to those communities; groups that lobby for changes to the law, especially at the state and local level, can create buffers against populist overreach. Efforts to harness congressional oversight functions—such as visits to detention facilities—offer yet another potent way of spotlighting anti-democratic practices. When such civic mobilization is lacking, it is more difficult to defend rights both inside and outside the courts.

These general observations apply to the United States as well, even as Trumpism continues to morph. During his first term, Trump was more of a disorganized disrupter than an aspiring autocrat. In the words of Eric Posner, a University of Chicago law professor, Trump’s first four years in office were “tempestuous…not because of any disciplined effort on his part to establish a dictatorship but because of his intellectual and temperamental deficits.” This time, however, Trump and his allies are much better prepared to wage a protracted war against the “deep state” and perceived cultural elites throughout society, even as more radical forms of illiberalism are circling, waiting for an opening. At the same time, Trump has surrounded himself with billionaires such as Jeff Bezos, Elon Musk, and Mark Zuckerberg, who provide important financial, media, and ideological support for his policies and actions.

Trump’s playbook, as outlined in the Heritage Foundation’s Project 2025, is similar to those used by other authoritarian leaders, such as Recep Tayyip Erdoğan, Viktor Orbán, Jaroslaw Kaczynski, and Jair Bolsonaro. He has moved aggressively to replace bureaucrats, military leaders, and government lawyers with people loyal to him, and to alter long-standing federal policy in a way that will allow him to remove civil servants he deems disloyal. He is likely to continue with the politicization of judicial appointments, gradually neutralizing the resistance of the judicial branch. And on university campuses, Trump has ratcheted up efforts to squash dissent among students and faculty.

Legal institutions, which are essential for the protection of liberal rights and checks and balances, rely almost entirely on tradition and unwritten norms. As the American public’s support for those traditions and norms wanes, it is unclear whether these institutions can continue to play the role they did during Trump’s first term. Certainly, judges have not shown themselves to be the only, or even the most robust, articulators or defenders of such norms. With polarization further increasing, it is quite possible that many of these norms will be sacrificed for partisan goals. As Milan Svolik, a political scientist at Yale, explains, “[P]olitical polarization undermines the public’s ability to serve as a democratic check: In polarized electorates, voters are willing to trade off democratic principles for partisan interests.” Critically, judges are not neutral answers to such polarization; they are legal-political actors who may exacerbate it.

Instead of offering better socioeconomic alternatives and defeating authoritarian populists at the polls, an increasing number of democracy’s liberal defenders have sought refuge in the law. We would urge them instead to put forward solutions that seek to restore faith in democratic aspirations among those “left behind” middle- and working-class voters who, disappointed with rising inequality and stagnant wages, have lost trust in political institutions. The proposed reforms must also be ones that aren’t easily exploited by opponents of democracy. In Nicaragua and Honduras, for instance, constitutional courts struck down presidential term limits based on the controversial notion that certain design choices are unamendable—an idea championed by some pro-democracy activists and jurists.

In short, simply defending or rebuilding the institutions of liberal democracy is not enough. The most that the “restorative constitutionalism” proposed by some leading constitutional scholars, like Rosalind Dixon and David Landau, can do is to prevent some of the worst attacks. Moreover, the constitutional entrenchment of additional checks and balances against the abuse of power could prevent meaningful reforms needed to address the crisis of hyper-globalized liberalism that brought demagogues and autocrats to power in the first place. Populist leaders across the world are promising larger pensions, better health care, and more jobs—an agenda that is winning over the abandoned working-class communities that were once a stronghold of progressive parties. Leaders on the left can reverse this populist trend by promoting solidarity and equality, specifically through job training, “green” growth, and other public investments.

None of this is to suggest, though, that liberal institutions are not important during the early stages of the authoritarian attack on democracy. Two conclusions emerge from this brief review of comparative perspectives. One is that law, however well designed and implemented, can play only a small role in preventing the breakdown of constitutional democracy when democracy is not the only game in town and when popular support for checks and balances is eroding. Rule-of-law institutions and lawyers might be necessary conditions for democratic self-preservation, but they are certainly not sufficient. The second conclusion is that the constraining power of law varies at different stages in the rise of authoritarianism.

Early on, constitutional design features and the occasional lawsuit that might have a pro-democracy effect can help to slow the deconsolidation of liberal democracy. During Trump’s first term, for instance, the constitutional order worked precisely as intended. A set of institutions and actors meant to impede incipient authoritarianism provided numerous obstacles to prevent Trump from carrying out his political plans. In the long run, though, democracy can survive only with broad popular support. As leading scholar of democracy studies Larry Diamond reminds us, “Democracies fail when people lose faith in them, and elites abandon their norms for pure political advantage.” This is exactly what is happening: Increasing numbers of political leaders and citizens are now willing to tolerate authoritarian practices in exchange for better protection of their security, social benefits, and political status. It’s this support for creeping autocracy, and the underlying conditions that sustain our current age of populism, that must be addressed. But make no mistake: Judges alone cannot get us to where we need to go.