The Resistance Brief: This week in the fight for justice

Contempt of Court

Blog by Ricardo Martinez (he/him), Executive Director

Because I work with some of the best legal minds out there, many friends, community members – even strangers – often turn to me for answers. After learning what I do for a living, they turn to me to give them hope and reassure them that our legal system will make certain justice and order prevail. Sometimes, they ask the impossible.

Now, we are nearly 100 days into Trump’s second presidency, and I’m noticing many more people expressing the fear that we are inching closer – or have already crossed – into constitutional crisis. I am also witnessing them process their grief in real-time as they reconcile feelings related to the current state of affairs – the weight of what someone recently described as the “eroding norms of our former democracy” displayed on their face.

One of the questions I am asked most often is related to our checks and balances: What happens if the President defies the courts? In other words, what if two branches of government are at a standstill because the executive is deliberately unwilling to respect the role of the judicial?

The Constitution has checks and balances to prevent any one branch of government from becoming too powerful. Article Three establishes the judicial branch and the courts. Subsequent Supreme Court decisions have reaffirmed the courts’ power to interpret the law and declare actions as unlawful or unconstitutional. Yet the process of ensuring compliance with a court’s decision remains more nebulous.

Historically, the executive branch’s deference to the courts has helped uphold their role as arbiters of justice and judicial review. When things are working how they should, the executive and legislative branches of government comply with a court’s decision – even if they disagree. It’s why President Biden couldn’t implement his student loan plan or why, despite his personal opinion, President Eisenhower honored his duty to desegregate schools after Brown v. Board of Education and subsequent federal court orders. While they may have vehemently disagreed with the court’s decisions, they respected its authority. Upholding the judiciary’s legitimacy has been a longstanding norm – it’s a presidential tradition.

But today, that tradition is unraveling, placing us in a precarious moment. The current President has publicly questioned the credibility of judges and framed their decisions only as legitimate when they support his plans and fall along partisan lines. Most concerning are recent cases in which the Administration appears to be ignoring court orders. So, what are the courts to do in cases like these?

Judges have the power to hold parties in contempt of court. Contempt is an act of defiance or disrespect towards a court ruling. When someone is found in contempt, a judge can enforce stricter orders, like court oversight, monetary fines, and even jail. They can also sanction attorneys who mislead the court or assist in defying court orders. Recently, the District Court for the District of Columbia found probable cause to hold Administration officials in criminal contempt for violating its order to turn around a plane flying immigrants to an El Salvador prison.

If the courts exhaust those options, they can call on U.S. Marshals to help enforce court orders. However, the Marshals operate under the direction of the U.S. Attorney General, who may be unwilling to participate in enforcing a court order not favorable to the Administration.

While all of this is undoubtedly alarming, there is a sliver of hope. The Administration’s recent defiance is not outright – not yet. Their responses often come in the form of cleverly manipulated interpretations of court orders, designed to twist the truth and allow for optical control. While their view of the orders may reek of bad faith, it still suggests that they see some line the American people won’t allow them to cross – that they can’t just assert the blatantly unconstitutional power to ignore the courts.

So, what other guardrails exist to prevent us from succumbing to fascism?

Congress, the third branch of government, has the power to pass laws and monitor and investigate the executive branch’s activities. But, out of fear or unquestioning loyalty to the President, and with the convenient excuse of a narrow margin in both the House and Senate, some members of Congress are refusing their responsibility to the Constitution and their constituents and giving up their power to scrutinize the Administration’s actions.

The short answer is we don’t know exactly how this will play out. But that doesn’t mean we can’t get creative and innovative about the ways we push back.

At a time when we have limited institutional power, GLAD Law has embraced a strategy that exposes the cracks in a broken system, delays harmful policies from going into effect, counters efforts to further divide us, and uses all aspects of law to uphold liberty, equality, and democracy.

Ultimately, the government’s power comes from the people. And we have already seen this Administration back down and accept limits when public outcry demands it. The people may ultimately be the ones who adjudicate justice with their voices and actions. We just need to continue showing up – protesting peacefully, with our wallets, through the power of our votes, and protecting our neighbors. Already, people are thinking creatively. The hands-off nationwide protests, the upcoming Law Day of Action, and the economic boycotts earlier this year are just a few reminders that, despite the hostile landscape, we are not powerless.

What to know, what to do: 

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