Seven Goldfish

When Is It Time to Get Worried About the Judiciary?

March 4, 2025

Are we already in a coup? (85% No)

I'm an Ashkenazi Jew. There's a long tradition among us of having careful, quiet kitchen conversations about whether things have gotten scary enough that we need to leave the country.This is a well-earned tradition born from a finely-honed sense of self-preservation developed in countries that have periodically decided to persecute us. It's happened often enough that the pattern-recognition gets passed down generationally.

My elderly parents were over recently, and we found ourselves having this very conversation. I pointed out that for once, we weren't in the primary "target group," so there was considerably more runway to work with on an exit strategy if needed. "First they came for the communists, and I didn't speak out because I wasn't an communist" inevitably came up. I said, "Yeah, if they come for group X and then group Y, we definitely need to go, but so far it's been limited to irregular immigrants."To be clear, I'm also HORRIFIED at what's happening with irregular immigrants. My comparison was essentially: "If you're a justice-minded liberal in Nazi Germany, but you're also blond, blue-eyed, and Christian, that's sort of our situation. At some point, you need to leave because you object to what's happening, not because you're in immediate danger."

This evolved into a discussion about "what does the red line look like?" I volunteered that I had several red lines, but the most apparent was "subversion of the judiciary." "Trump can throw all sorts of crazy executive orders and laws at the wall to see what sticks... that's just how it is," I contended. "The judges will clearly strike down 90% of it. We know we have a problem when they start completely ignoring judicial rulings, when they start removing judges or court packing, or when we see judges so intimidated that they start making obviously wrong rulings." I also want to clarify that while I hate the loss of Roe v. Wade, from a legal perspective it doesn't look like a failing judiciary — just one I disagree with. Then, a few short days later, I wake up to see the deeply unreliable news feed packed with statements about Trump attacking the judiciary, and YouTube videos with titles like "It's Already a Coup."

There's my red line! Or is it?

digging for primary sources

Let's start diving into the actual primary sources. What prompted this wave of "judiciary under attack" headlines? Trump's Comments

The most immediately concerning quote circulating was from President Trump:

Yesterday, the president said that no judge "should be allowed" to rule against the changes his administration is making.

This quote came from The Atlantic's article titled "Trump and Vance Are Threatening the Courts." Seeing something this dire filtered through a publication like The Atlantic immediately triggers my skepticism - not because they're making things up wholesale, but because framing and context matter enormously.

So what did Trump actually say? I found the transcript from a press gaggle aboard Air Force One on February 9, 2025:

And the day you're not allowed to look for theft and fraud, etc. then we don't have much of a country. So no judge should be, uh -- no judge should frankly be allowed to make that kind of a decision. It's a disgrace.

This is classic Trump rhetoric - hyperbolic, imprecise, and inflammatory - but it's also a far cry from announcing he's going to ignore the courts entirely. "We're going to see what happens" from the earlier line sounds like something someone getting ready to fight it in court would say

Elon Musk's Twitter Storm

Another major source of alarm has been Elon Musk's barrage of tweets calling for judicial impeachments.

On February 9, 2025, he tweeted:

A corrupt judge protecting corruption. He needs to be impeached NOW!

This was in reference to U.S. District Judge Paul Engelmayer, who had temporarily blocked Musk's Department of Government Efficiency (DOGE) from accessing Treasury Department data.

Three days later, on February 12, Musk escalated:

There needs to be an immediate wave of judicial impeachments, not just one.

And on February 25, he went further:

If ANY judge ANYWHERE can block EVERY Presidential order EVERYWHERE, we do NOT have democracy, we have TYRANNY of the JUDICIARY.

Tweet on February 25, 2025

The only way to restore rule of the people in America is to impeach judges. No one is above the law, including judges. That is what it took to fix El Salvador. Same applies to America.

Tweet on February 25, 2025

It's worth noting that Musk, despite his government role, has a long history of provocative tweets that don't necessarily translate into official policy. Nevertheless, as the head of DOGE, his statements carry more weight than they would as a private citizen.

JD Vance also chimed in:

If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power.

Feb 9 2025

At this point I think it's pretty reasonable to assume that the Trump administration will attempt to impeach some judges. So the question becomes... what's that going to look like?

Removing judges via Impeachment (not likely)

To remove a sitting judge via impeachment is almost exactly the same process as to remove a sitting president via impeachment.

51% vote from the House (lower chamber) to start an impeachment trial . I think we can assume that this will happen given that the republicans control a majority in the House, and they have pretty good "party discipline" at this point.

Then we get a long drawn out trial in the Senate, and the senate needs a 2/3 majority to actually remove the sitting judge. Though the Republicans control the Senate, they don't have anything like a 2/3 majority, so this is a dead end, much like the Impeachment of Donald Trump was during his first term.

There is an interesting question of if the impeachment process itself is enough to intimidate or bully federal judges, but I would hope that a judge has both the foresight to see he won't be removed and the metal to sit thru the impeachment for the good of the union.

What do the forecasts look like?

55% chance a president ignores a court order in the next 8 years Wow, that's not great! That's in fact pretty horrible!

This group of super-predictors is saying Who I have never heard of until recently reading about them on the Astral Codex Ten Links roundup. This is sort of my first look at them, but they passed the sniff test for sanity in general. It does seem like they have a lot more political emotional involvement on this prediction than on most of their stuff

our forecasters believe there’s a 39% chance (range: 15%-60%) that the Trump Administration will ignore at least one Supreme Court ruling, assuming that at least one ruling goes against the Administration

Given the overwhelming legal weakness of the Birthright Citizenship Cancelation, amongst others, I think we can be almost positive that some SCOTUS rulings will go against the administration.

So they are saying a 39% chance that my red line gets crossed! I do note that the range goes down to about 15%, which is a lot closer to where I am on this.

Even more disturbingly:

72% chance in aggregate (range: 10%-95%) that a free and fair Presidential election will be held in 2028

That's a ~30% chance that we have lost the democracy! I mean, that's really dark, but again I notice the range is absolutely wild on that. Anyone who is saying we are down to a 10% chance of a fair election seems like they are operating out of excessive certainty.

I mean, I don't think I would put a 90% chance on Trump living to the end of the term just based on actuarial tables. I just ran the actuarial tables question thru a few LLMs, and got between an 80% and a 75% four year survival rate. Notably Google Gemini refused to answer, and remains a total pile of crap

Trump passing away doesn't ensure a free election, but I like to think that would cause a regression to the mean on American politics.

Testing Hypotheses

At this point, I want to apply some rigor to analyzing what's happening. Let's frame two competing hypotheses and look for evidence that would disprove them. Two Competing Narratives

Hypothesis 1: We're Witnessing the Early Stages of a Constitutional Crisis Under this hypothesis, Trump and allies like Musk are laying groundwork to systematically undermine or bypass the judicial branch as a check on executive power.

Hypothesis 2: This Is Just Political Bluster and Rabble-Rousing Alternatively, this could simply be the typical pattern of politicians and appointees expressing frustration when courts don't rule their way, with no real intention to fundamentally alter the balance of powers.This framing allows us to look for disconfirming evidence rather than just evidence that supports our initial reactions. It's a more rigorous approach than simply collecting alarming quotes.

What Would a Real Constitutional Crisis Look Like? If Hypothesis 1 were true, we'd expect to see concrete actions beyond rhetoric:

Non-compliance with court rulings (e.g., agencies ignoring injunctions) Legal or procedural changes to undermine judicial enforcement Concrete moves to remove judges, not just talk about it Mobilization of security forces to enforce policies contrary to court orders Signs of coordination across branches or levels of governmentThe difference between rhetoric and action is crucial. Politicians have complained about courts for centuries - it's the actual defiance that would signal a crisis.

What's Actually Happening? I looked at several recent cases where courts ruled against Trump administration policies:

Foreign Aid Funding: When a district judge ordered the unfreezing of foreign aid funds, the administration didn't defy the order - they appealed to the Supreme Court, which temporarily halted the lower court's order while they review the case.

Birthright Citizenship Executive Order: After a federal judge issued a preliminary injunction blocking Trump's executive order restricting birthright citizenship, the administration appealed through normal legal channels.

Department of Government Efficiency Access: When Judge Engelmayer blocked DOGE from accessing certain Treasury records, they complied while pursuing appeals.

In each case, the administration has followed established legal procedures rather than defying court orders outright.Following legal procedures to challenge unfavorable rulings is not a constitutional crisis - it's how the system is designed to work, even when the rhetoric surrounding it is heated. Honestly it actually even reenforces the power of the courts. If you are going to claim the courts don't have authority, then it looks bad to go thru the whole appeals process

Other clear "constitutional crisis" items The transition from rhetoric to action is the crucial threshold. When words become policy, that's when alarm bells should ring loudest.: Any federal agency refusing to comply with a court order Executive directives instructing officials to disregard certain judicial rulings Mass removal of career DOJ officials who insist on following court orders Actual Senate votes on judicial impeachments (not just House introductions) * Constitutional amendments or legislation proposed to limit judicial review

So what is the takeaway?

I don't think we are in a crisis yet, though things look bad. There is also a tendency to imagine the Trump administrations planning horizon. While I think it's foolish at this point to underestimate them, I also think that they aren't so much playing 4d-chess as very good at both creating and reacting to chaos.

We aren't there yet, but I wouldn't put it past them.