Against the Cult of the Robe
Socialists Must Fight for Democracy, Not Judicial Supremacy
By: Eric L. and Siobhan M.
K.R. Chamberlain, cover of the July 1915 cover of the Masses
Kilmar Armando Abrego Garcia has been trapped in El Salvadoran prison for thirty seven days.
The Maryland sheet metal worker and father of three was arrested by the Trump Administration on March 12, 2025, and deported alongside hundreds of others to El Salvador’s notorious CECOT mega-prison a few days later. Despite a 2019 order from an immigration judge that he cannot be deported to El Salvador and increasingly irate recent orders by US. District Judge Paula Xinis to facilitate his release, Mr. Abrego Garcia continues to languish in El Salvadoran prison.
When Mr. Abrego Garcia and the others deported with him were brought to CECOT, they were shackled and forced to bow their heads to their waists. Guards then commanded them to kneel and shaved each of their heads. From there, they were brought to their cells–large, crowded rooms of hard metal beds and bright lights that remain on at all times. Prisoners at CECOT are kept in these cells for all but a half hour every day. Mr. Abrego Garcia has since been transferred to a different El Salvadoran prison, but the hundreds deported with him remain in CECOT.
Trump and El Salvador’s dictator, Nayib Bukele, have remained defiant about freeing Mr. Abrego Garcia, and Trump indicated that he intended to send “home-grown” prisoners to El Salvador’s hellish prison system as well. So far, despite America’s oft-vaunted system of checks and balances, no other government bodies have been able to effectively intercede to free Mr. Abrego Garcia, despite the Administration admitting he was deported because of an “administrative error.”
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The first few months of the second Trump Administration have been defined by an autocratic seizure of power by the executive. To begin mass deportations, dismantle significant portions of the federal government, and drive transgender people toward eradication, Trump has worked to consolidate power in the Oval Office, at the expense of both legislative and judicial authority. To the extent the Democratic Party has fought back, it has been through largely ineffective appeals to the courts.
While there is a role for lawsuits in attempting to stymie the Trump Administration’s frenetic efforts to erode personal liberties, any approach that relies on these institutions is doomed to failure. The federal courts are wildly undemocratic institutions which have been wholly captured by the right; while these structures should still be used strategically as necessary, it should be recognized that no meaningful defense of democracy will come through such an anti-democratic institution.
The Democratic Party and the NGOs in its orbit have been relying almost solely upon the judiciary, and had little to offer but finger-wagging when the highest level of that branch has performed its historical role as a rubber-stamp for reactionary policies. DSA must fill this void in leadership with a clear call to replace our slavery-era Constitution with a democratic system of universal and equal suffrage, where the people’s elected assembly, not authoritarian executives or unelected judges, retains final political power.
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The Trump Administration’s seizure of congressional power has been widespread. Trump and DOGE have essentially asserted unilateral control over federal spending, fundamentally upending the Constitution’s designation of Congress as holding spending power. This extends even to the shuttering of entire congressionally-created agencies like the Department of Education.
Congressional responses to this executive overreach have generally ranged from subservient groveling by Republicans to ineffective bleating by Democratic Party leaders. When faced with their biggest spot of leverage—Republicans needed at least eight votes from the Senate’s Democratic Party caucus to keep Trump’s government open and cut money for housing—Chuck Schumer delivered ten, including his own.The funding advanced, 62-38, and the Democratic Party squandered its clearest opportunity to stand up to Trump legislatively. Democrats have routinely provided votes for Trump’s nominees, and Marco Rubio was confirmed with an incredible 99-0 vote.
Instead of fighting in the legislature, Democrats and their allied nonprofits have largely sought to fight back against Trump in the Courts. This is a curious choice—especially after Trump spent his first term stacking courts with Federalist Society ghouls and Biden and Schumer failed to act with the same urgency. So far, it has not paid dividends for liberals, based on a combination of rulings in Trump’s favor and his inclination to ignore any rulings not in his favor. His refusal to free Mr. Abrego Garcia is perhaps the most alarming example. The Trump administration has argued that once prisoners are in El Salvador, they are beyond the reach of the Judicial System—laying the groundwork for a set of extrajudicial concentration camps.
The Supreme Court, for their part, has delighted in repeatedly making decisions which nominally preserve rights while functionally allowing Trump to proceed with his agenda unchecked. When a case related to education cuts in violation of Congressional mandates, Department of Education v. California, reached the Supreme Court, the Court stayed a temporary restraining order previously issued by a federal district court, thereby allowing the Government to terminate various education-related grants. In a lawsuit to stop Trump’s use of the Alien Enemies Act to summarily deport Venezuelan nationals to CECOT, the Supreme Court initially made vague gestures at “due process” while allowing the deportations to continue, and insisted that any future challenges must be brought in the district where an individual is detained–allowing the Administration to kidnap people and send them to hyper-conservative judicial districts in Texas and Louisiana for show trials. The Court later temporarily blocked the deportation of some American residents from Venezuela, but made clear that this was only a pause to allow them to consider the case.
In Mr. Abrego Garcia’s case of admitted wrongful deportation, the Supreme Court ordered him returned (or at least ordered the government to “facilitate” his return), but also ordered the lower court to amend its order to reflect “the deference owed to the Executive Branch in the conduct of foreign affairs,” which has given the Administration leeway to refuse to take action. This has allowed Trump—for now—to continue alleging he is in compliance with the court orders.
This is the latest ruling in the long history of the judicial system creating the imperial presidency by caving to the President regarding issues of “foreign policy” or “national security.” The Constitution nominally prohibits deprivation of liberty without due process of law, grants Congress the power to declare war, and prohibits cruel and unusual punishment. Nevertheless, thanks to the Supreme Court’s deference, presidents have been able to force residents into concentration camps on the basis of their race, carry out secret bombings of foreign countries, and torture detainees who are held indefinitely without trials. It is all too likely that Trump will eventually openly ignore court orders—even from the Supreme Court if necessary—but a rhetorical and political strategy of deference to the authority of the courts until that point of rupture ensures that meaningful resistance is both untimely and unmoored from a coherent understanding of democracy.
This deference extends to executive branch violence at home, where courts allow police and prisons to get away with abuse and horrific conditions through clever legal loopholes like “qualified immunity.” The deadly nature of American prisons for transgender women has been known for decades and courts have done next to nothing to ameliorate it. If one looks to courts to defend them from the violence of the executive, they will almost certainly be left defenseless.
It is clear, then, that we cannot expect courts to save us—and, by extension, we cannot expect a governing system reliant on the unenforceable supremacy of an unelected judiciary to save us. We must stake out a clear position that we are opposed to both Trump’s authoritarianism and the undemocratic Constitutional order that created the conditions for it. Our Constitution entrenches rule by the privileged few by creating rigged, non-proportional actors with just an appearance of democracy, such as the wildly-disproportionate Senate, unelected judiciary, President elected through the byzantine electoral college, and gerrymandered House.
We must agitate sharply and openly for a new, democratic constitution with final political power resting in a people’s assembly, elected proportionally by universal and equal suffrage. Under this democratic constitution, members of the people’s assembly would be elected through nationwide proportional vote, in order to ensure the body is reflective of the political will of the people. This representative body’s democratic decisions would then have final authority over judges and executive employees. This is the natural political vehicle for the rule of the working-class majority, and achieving it must be at the center of our organizing.
The views expressed herein are the authors’ own and do not reflect the opinions of their employers nor official caucus policy.
