June 19, 2024 - 8:00pm

A glossy spread in the New York Times has profiled the progressive groups preparing for a second Donald Trump administration. Their weapon of choice appears to be lawfare.

The American Civil Liberties Union is reportedly “drafting potential legal filings” in anticipation of Trump policies on issues such as abortion, immigration and protests. The group Democracy Forward is going a step further and preemptively “recruiting sympathetic plaintiffs who would have legal standing in court”, according to the Times.

Beyond the Beltway, blue-state lawyers “have been quietly studying the playbooks of their Republican counterparts in Texas and Florida, whom they view as being most successful at attacking and obstructing the Biden administration”.

It’s true, of course, that conservative groups are fighting Joe Biden in court, and are busy laying the groundwork for a second Trump administration. They tend to be cast in less neutral terms.

If, for example, Trump were to embark on a programme of “mass deportations”, as the ACLU fears, the organisation’s efforts to undermine him would also undermine the will of American voters. Not only would they have elected him president, a new CBS/YouGov poll found a clear majority of registered voters — and a majority of Hispanics — support a national deportation programme aimed at all migrants living in the US illegally.

Whether or not one agrees with Biden, his own administration agrees the surge of border crossings during his presidency is without modern precedent. This is why the Right is arguing on behalf of an unprecedented response. Only the Left, though, dodges accusations of extremism in the press.

When Trump broached the idea of using troops to quell violent protests in 2020, most Americans sided with him. The former president is so irked by the GOP’s anti-abortion streak — conscious of its unpopularity — that he’s proactively pledging to leave the issue to the states.

It would be foolish to dismiss Trump as a hapless centrist with no real designs to target the Left or abuse power. It’s entirely possible we’re treated to another round of conspiracy theories about Hugo Chávez and electronic voting machines if Biden wins in November. After all, the Supreme Court’s bump stock ruling last week highlighted overreach from Trump’s first administration.

But it’s also possible that Trump’s precedent-shattering rhetoric would never have made it to the convention floor in 2016 had his predecessors on both the Left and the Right not themselves shattered so many precedents along the way. Then, even more importantly, acted as though it was all totally normal and that anyone who disagreed was a kook.

So welcome to the doom spiral. As outlets such as the Times continue treating the Right’s lawfare as a dark conspiracy and the Left’s as a campaign to save democracy, political use of the courts will only escalate. This doesn’t absolve partisans of their responsibility to constituents and the Constitution. It does, however, mean they’ll increasingly feel forced to turn to the logic of “desperate times, desperate measures”, perhaps rightfully assuming that the only way out is through.

If the placid Times story is any indication, it’s not clear America’s political elite is prepared for what that unleashes.


Emily Jashinsky is UnHerd‘s Washington correspondent.

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