An Effective Resistance Strategy Against Trump’s Constitutional Assaults Needs to Mobilize Both Courts and Public Opinion
History shows that the two work in tandem and we shouldn’t pick one or the other
The Trump administration has launched a multi-faceted assault on many aspects of our constitutional system, ranging from illegal deportations of immigrants to blocking legal migration by unconstitutionally declaring a state of “invasion,” to usurpation of congressional authority over federal spending and tariffs. These efforts have, in turn, encountered resistance by means of both litigation and political mobilization. But there has been little consideration of how the two types of resistance to Trumpism relate to each other. There are often important synergies between litigation and political action. Each can bolster the other. Such synergies don’t always happen—and there are situations where litigation might actually undermine political efforts. Still, activists and litigators can act in ways that maximize synergies, while mitigating potential downsides.
Throughout modern history, successful constitutional reform movements have generally combined litigation and political action, not relied exclusively on one or the other. That was true of the Civil Rights Movement, the women’s rights movement, same-sex marriage, and movements to expand property rights and gun rights, among others. Litigation can bolster political action, and vice versa.
These dynamics are also evident in the early results of litigation against some of Trump’s abuses of power, most notably in immigration and trade.
How Winning in Court Can Move Public Opinion
The most obvious and powerful way litigation can stimulate political action is by highlighting sympathetic cases and drawing public attention to them. Abolitionists like future Supreme Court Chief Justice Salmon P. Chase pioneered this strategy by bringing cases challenging the rendition of sympathetic fugitive slaves under the Fugitive Slave Acts. This highlighted the injustice of slavery for northern whites and bolstered antislavery political movements. Thurgood Marshall and other civil rights lawyers used similar tactics, for example by emphasizing cases where innocent Blacks were railroaded by a racist criminal justice system, and sympathetic children were consigned to inferior segregated schools, based solely on race. The sight of police and mobs blocking Black children from attending integrated schools as required by the Supreme Court’s ruling in Brown v. Board of Education helped mobilize public opinion against segregation, paving the way for new federal legislation.
More recently, the Institute for Justice (a libertarian public interest firm) litigated the case of Kelo v. City of New London, challenging the condemnation of homes for private economic development. In a badly flawed 2005 ruling, a narrow 5-4 Supreme Court majority rejected IJ’s argument that this taking violated the Fifth Amendment’s requirement that eminent domain can only be employed for a “public use.” But the decision caused a public outcry that led to the enactment of eminent domain reform laws in 45 states. While about half the new laws were ineffective, there was still a huge net gain for the cause of property rights. If not for the publicity generated by the Kelo case, most voters would have remained blissfully unaware of the problem of eminent domain abuse. Even a losing battle in the courts can sometimes stimulate a political victory.
A similar dynamic has played out with recent litigation challenging Donald Trump’s cruel immigration policies. In the 2024 election, immigration and border issues were significant political assets for Trump because a large majority of the public supports deportation of “criminal” migrants, especially those who committed violent crimes or entered the U.S. illegally. But deportation of peaceful migrants, particularly legal ones and those with longstanding roots in the U.S., is far less popular and opposed by majorities, according to most polls.
Multiple high-profile cases have been filed challenging such actions as the: deportation of non-criminal (often legal) immigrants without due process under the Alien Enemies Act; deportation of foreign students for their political speech; imprisonment and wrongful deportation to El Salvador of immigrants such as Abrego Garcia (whose case reached the Supreme Court), among others. Such policies are generally unpopular, and ongoing lawsuits have helped to focus public attention on them. Like Brown and Kelo, many of these cases featured dramatic and sympathetic facts, such as innocent men torn from their families, despite the lack of any meaningful evidence of criminal activity.
As a result, Trump’s once strongly positive public approval ratings on immigration have turned negative within just a few months—a remarkable shift. Litigation is not the only cause of this change. But it—and the resulting publicity—likely played a significant role. Absent the court cases, especially the extra media coverage that those that reached the Supreme Court received, there would have been likely far less public attention focused on unpopular aspects of the Trump immigration agenda. Survey and experimental evidence indicate that media coverage of the Abrego Garcia case hurt Trump’s approval ratings on immigration issues and reduced public support for mass deportation.
I have argued that deporting even immigrants convicted of crimes is unjust, because arbitrary circumstances of ancestry and place of birth should not subject them to greater punishment than others who commit the same crimes. But this position is highly unpopular. If Trump had been able to keep public attention on deportation of illegal immigrants who committed crimes, his immigration agenda would have remained relatively popular. Lawsuits have weakened his political position and thereby facilitated political mobilization against his policies.
Litigation that challenges—and thereby highlights—unpopular policies can play a key role in increasing public awareness of an issue and help mobilize political action against it. The opposition to Trump should take this lesson to heart and seek to bring more cases that fit this description.
Public Opinion Leads to Victories in Court
If litigation can bolster political action, the opposite is also often true. Historically, shifts in public opinion brought on in part by political movements have helped pave the way for judicial interventions that would not have been feasible otherwise. Brown v. Board of Education was in large part made possible by liberalizing shifts in public opinion on racial issues over the preceding decade. Craig v. Boren, the 1976 decision in which the Supreme Court ruled for the first time that laws discriminating on the basis of sex are presumptively unconstitutional and subject to heightened scrutiny, was in part a result of years of opinion-shaping activism by the feminist movement. Such a decision would have been impossible in earlier eras.
More recently, shifting public opinion—influenced in part by the efforts of the gay rights movement, as well as more positive portrayals in film and television—helped make possible the Supreme Court’s ruling in Obergefell v. Hodges (2015), which struck down laws banning same-sex marriage. A few months earlier, Supreme Court Justice Ruth Bader Ginsburg openly stated that the shift in public attitudes had paved the way for such a ruling, whereas earlier she had feared the public was not ready for it.
Public opinion bolsters judicial action in part because court decisions do not enforce themselves. Judges have little direct coercive authority and must rely on public support and the cooperation of officials in other branches of government. Such cooperation and support is more likely if a ruling has substantial public approval. Most judges, especially those on the Supreme Court, are well aware of this connection.
The dynamic of public support bolstering judicial review may be at work in current legal battles challenging Trump’s imposition of massive tariffs, potentially starting the biggest trade war since the Great Depression. These tariffs are highly unpopular, in part because opponents have effectively publicized the reality that they will increase prices. Studies show that mention of price effects is an effective way to stimulate public support for free trade. The U.S. Court of International Trade recently invalidated the “Liberation Day” tariffs in a case that the Liberty Justice Center and I filed on behalf of five businesses harmed by the tariffs, and in a similar case filed by 12 state governments. A recent Morning Consult poll shows that a large majority of Americans supported the decision. It would have been harder for courts to invalidate a major presidential initiative if public and elite opinion were firmly behind it.
This doesn’t mean that courts simply “follow the election returns.” They are often willing to ignore majority opinion, especially in low-profile cases that attract little or no public attention (which form the vast bulk of judicial dockets). Even if a majority, in principle, opposes a given decision, there is unlikely to be much of a backlash against the ruling if most voters don’t know about it. Scholars have also documented how courts will sometimes follow elite opinion above the general public’s when the two conflict. For instance, on race and sex discrimination, same-sex marriage, and possibly Trump’s tariffs, highly educated elites were more supportive of judicial intervention than the general public, and this has an impact on judges, who are themselves obviously members of the educated elite.
Few judges are likely to strike down a policy solely because public or elite opinion favors doing so. But if they are generally sympathetic to the legal case, such backing is likely to make them more willing to act on those instincts. Contrariwise, they may hesitate if they sense strong widespread opposition. As Michael Klarman has shown, the same Court that decided Brown v. Board in 1954 dodged an opportunity to strike down laws banning interracial marriage the next year, for fear of political backlash. They did not make such a ruling until 1967, by which time public opinion was more supportive.
Less Noticeable—But Notable—Benefits of Winning in the Court of Public Opinion
Public and elite support is also important to incentivizing compliance with judicial rulings. The Trump Administration has arguably flouted court orders in several cases, and made noises about doing so more broadly. But so far, with a few important exceptions, they have obeyed a majority of court rulings against them, even in immigration. That modicum of restraint is probably not because they have any deep commitment to the rule of law. A more likely explanation is that they know defiance of court orders is highly unpopular and would generate a backlash. An April Pew Research survey shows that 78% of Americans believe Trump must follow all court orders; even a large majority of Republicans agree. Plus, many lower-level government officials (influenced by public and elite opinion) may not follow orders to engage in such defiance.
Trump’s opponents would do well to highlight the dangers of such defiance and reinforce public opposition to it.
If courts often won’t make major rulings until they sense sufficiently broad public support for doing so, one might ask why those rulings matter at all. Why not just work through the political process?
The answer is that even relatively popular reforms protecting individual rights and limiting abuses of government power are often hard to push through politically, and judicial review can accelerate the process. While public opinion on race in the 1950s and same-sex marriage by 2015 had shifted in a more liberal direction, many more racist and more socially conservative states would have maintained segregation and laws banning same-sex marriage for many more years if not for judicial intervention. Absent the Obergefell decision, some states would undoubtedly still ban same-sex marriage today. Similarly, the unpopularity of Trump’s tariffs is not enough to muster two-thirds veto-proof majorities needed to pass effective legislation to overturn them.
Opponents of Trump’s dangerous and illegal power grabs should learn from history and pursue strategies that combine litigation and political action. Tariffs and some types of immigration issues are particularly promising opportunities to further exploit these synergies. Ideally, Trump’s opponents can create a virtuous circle: Lawsuits targeting his more unpopular policies can make them—and him—more unpopular, which in turn paves the way for additional litigation on a wider range of issues.
Pitfalls and Limitations of a Dual Strategy
While pursuing synergies between litigation and political action are a promising strategy, such an approach does have limitations and potential pitfalls.
It is particularly important to recognize the limits of public attention and knowledge. Survey data shows most voters pay little attention to politics, and often don’t know even basic information about government and public policy—including judicial decisions. This makes it hard to attract public attention to more than a few legal battles at any given time. That dynamic limits the number of situations where advocates can count on judicial decisions, even important ones with sympathetic facts, moving public opinion. For every Kelo, there are numerous rulings that have little impact on public opinion because most voters don’t learn about them. Legal and political elites are more aware, however, and their attention is easier to capture.
Some complex legal issues, moreover, are difficult or impossible to present to the public in a way that enables people to grasp their significance. That doesn’t mean litigation in such cases is a bad idea. But it does mean it cannot rely on a boost from mobilizing public opinion.
In addition, while litigation efforts promoting popular results can help mobilize public opinion in support of a cause, litigation promoting unpopular ones can have the opposite effect. To take a notable recent example, polls show strong majority opposition to allowing transgender women to play on women’s sports teams and use women’s bathrooms. High-profile litigation seeking such results may well have had the effect of stimulating public opposition to transgender rights.
That doesn’t necessarily mean that advocates were wrong to bring such cases. But it is important to consider the tradeoffs involved.
Efforts to stimulate judicial review by shifting public opinion also have limitations. In part because of widespread public ignorance and bias, such efforts often take a long time to bear fruit, as was true in the case of the Civil Rights Movement, among others. In the meantime, efforts to shift opinion can themselves generate backlash, and that backlash can sometimes affect judicial decisions, as well. Many scholars argue that the late-19th-century backlash against Reconstruction helped stimulate judicial rulings against equal rights for blacks, such as Plessy v. Ferguson (1896). On the other hand, there was a rapid shift in public opinion in the last few years before Obergefell. Litigation probably helped make that happen.
Despite such constraints, history shows that a strategy combining litigation and political action can often be highly effective. Opponents of Trump’s power grabs have already made some effective use of such approaches, and we would do well to do so more systematically.
© The UnPopulist, 2025
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