What US Judges Can Learn From the German Experience
The Trump administration is engaged in a battle over the “mode of rule” of the American society. During his presidential campaign, in March 2023, Donald Trump announced a 10-point plan to dismantle the “deep state”. According to the Claremont Institute, a think tank that works “to teach the principles of the American Founding to the future thinkers and statesmen of America”, the US have been taken over by the “Deep state”, a highly educated progressive elite that rules by meritocracy, not by democracy. The call is for “a return to the principles of the American Founding and the defense of the American way of life”, which “have been under siege by progressive ideology and policy from above and social erosion from below”. This is no less than a revolutionary program.
Although the battle is not primarily directed against the courts, judges may quickly get involved. Many see them as a primary defense of the liberal order. Proponents of the attacks on the established order argue that the judges overstep their mandate if they curb the power of the presidency. Elon Musk has even called for impeachment and removal of troublesome judges. Is there anything US judges can learn from the experience of their German colleagues in the 1930’s? This was also a liberal state that was taken over and dismantled quickly by a strong executive power. Contrary to what is generally accepted, the regime initially met with some opposition from a traditionally strong judiciary, which nevertheless crumbled into submission and became an instrument for the system that was established.
An initial word of caution: It is not my intention to compare the policies of the Nazis and the current US administration, let alone indicate there are kinships or similarities. My mission here is only to examine institutional parallels in the dynamics between the executive and judicial powers.
The legal fights over the “mode of rule”
A battle over President Trump’s executive orders is being fought out in the courts. More than 100 cases have been filed, and at least 44 rulings have temporarily paused some of the president’s initiatives. Cases involve Trump’s Diversity, Equity and Inclusion (DEI) Orders, Gender-Affirming Care Orders, Birthright Citizenship, the status and powers of the Department of Government Efficiency (DOGE), Freezing of Foreign Aid, termination of civil servants and many more issues.
For example, a federal judge in Maryland recently upheld a preliminary injunction blocking key provisions of Trump’s executive orders aimed at eliminating DEI programs. Another judge temporarily blocked parts of Trump’s anti-DEI orders, marking a significant step in safeguarding diversity activities across US higher education.
Also, other orders have been blocked. For example, a federal judge in Washington, D.C., blocked Trump’s executive order to freeze federal grants and loans and defund the USAID. The judge subsequently lifted his restraining order blocking the dismantling of the USAID. However, another judge suspended the effect of the order to freeze funds of the USAID. The Supreme Court rejected 5-4 a request by the administration to overrule this and freeze the funds, and left it to the trial judge to clarify the obligations of the government.
In another case, Trump’s order to stop asylum seekers at the southern border was blocked. Additionally, a federal judge blocked Trump’s executive order to end birthright citizenship for children born in the US to parents who are not in the country lawfully.
However, the Trump administration has also gained preliminary victories in the legal battles. A federal judge permitted the administration’s mass layoffs of probationary workers. Another federal judge allowed the administration’s mass “deferred resignation” buyouts to proceed, ruling that the unions did not have legal standing to challenge the plan. A federal judge denied an effort by 14 states to immediately block Elon Musk and his advisory DOGE from accessing data systems or making personnel decisions at seven federal agencies. A judge in D.C. denied a student group’s request for an order blocking DOGE staffers from getting access to sensitive data systems at the Department of Education, finding the group failed to show that “it will likely suffer irreparable harm.”
Up until now there are rulings both in favor and against the administration. Although the lawsuits accuse the administration of breaking both the constitution and ordinary legislation, the issues that have been addressed so far are mainly over technical and procedural matters such as legal standing, the requirements to issue temporary restraining orders, and the applicability of the administrative procedure act. It is therefore to early to say to what extent judges are willing to challenge Trump and his administration head on and defend the established order.
Pressure on the judges
Vice President JD Vance in February stated on X that “Judges aren’t allowed to control the executive’s legitimate power”. He has previously advocated defiance of court rulings and expressed contempt for legal constraints. Some fear that the courts may seek to sidestep a significant confrontation with the executive branch in the face of recent threats to ignore court orders. Conservative voices are now openly advocating
“bold steps like executive non-compliance with judicial orders of dubious constitutional authority are absolutely necessary to reassert executive independence and push back the expansive creep of judicial tyranny.”
They argue that courts do not have the power to decide anything but the issue between the subjects that are party to a case, and that the administration should ignore nationwide injunctions issued from single federal judges. “By a reasonable constitutional standard and the original meaning of judicial review, such decisions are only binding for those particular individuals implicated”, it is claimed. This even goes for rulings by the Supreme Court, that “hold great sway”, but “are not truly the final word on constitutional interpretation”.
Some have gone even further. In response to legal setbacks, Elon Musk called for anti-Trump judges to be impeached. After a conservative commentator wrote on X that the judges should be “impeached and removed”, Musk replied: “It’s the only way”. “We do NOT have democracy, we have TYRANNY of the JUDICIARY”, he expressed.
How will judges react to this pressure in the longer run? Will they manage to block the attempts at revolution that is being launched by the Trump administration and the MAGA movement? Looking at other “legal” revolutions can provide background to answer such questions, offering both inspiration and warning to judges who wish to protect the legal order.
The resistance of German judges in the early 1930’s
The best-known and infamous example of such a transition is the transformation of the democratic state of Germany by the Nazis in 1933. It is well known the judiciary was subdued and became the “horrible lawyers” in the words of Ingo Müller. What is less noticed was that initially, the new regime did meet with some opposition from the judiciary. A cause célèbre is the case of the Reichsgericht after the fire in the Reichstag on December 23, 1933, where four of the five accused were acquitted by the court due to the lack of evidence. The four were known communists, and Hitler and Göring were expecting a show trial to do away with political opponents.
The Prussian Administrative Court held onto the principle of legality for some time by interpreting both old laws and laws passed by the Nazi regime narrowly, thereby curbing the power of the authorities. The Prussian Administrative Court maintained this line throughout the 1930s and until the court was abolished in 1938 and replaced with a Reich Administrative Court.
Initially, prosecutors and judges reacted against the misuse of power and the atrocities in the Concentration Camps. In May 1933, prosecutors in Munich started investigations into killings of inmates in Dachau. These investigations were met with resistance and countermeasures by the SS, and the confrontations between the legal institutions and the SS were soon brought to the highest political level. Nevertheless, SS guards in several camps were found guilty of mistreatment of prisoners and given prison sentences. In 1935, Hitler confirmed that the camps could operate outside of the law, pardoning the SS men. This brought an end to legal proceedings in regular courts against operations in the camps.
Independent judgments in political cases prevailed. In 1936, the authorities initiated a campaign against the monasteries, convents, and members of religious orders, charging them with the offense of “homosexuality”, often on the basis of the testimony of young witnesses recruited from mental institutions. The cases were highly profiled and supported by the Party propaganda apparatus and Goebbels himself. Monks were apprehended by the Gestapo and kept in custody as ordered by the courts. In Cologne, one of these cases involving four monks reached the Oberlandesgericht on appeal. The lower courts had approved the detainments in summary decisions. The three judges of the Oberlandesgericht demanded the documents of the case and made a thorough investigation of them. In a ruling spanning over more than fifteen pages, the Oberlandesgericht released the monks and severely criticized the methods of the Gestapo.
A well-known case is the case against Martin Niemöller, one of the founders of the Confessional Church, an organization that opposed the Nazification of German Protestant churches. This case was brought before the special court of Berlin, and the verdict was passed on March 2, 1938. The court was, in other words, one of the courts specifically established in 1934 to deal with political cases. The judges were hand-picked for the task. Niemöller was accused of disturbing the peace, misuse of office, and encouraging opposition against measures enacted by the government of the State. Instead of the long prison sentence envisioned by the Gestapo, Niemöller was fined 2,000 Reich Marks after an impeccable proceeding as judged by any normal legal standard. A Swiss paper celebrated that “there [were] still judges in Berlin”. Sadly, Niemöller was never released from Gestapo custody, and was transferred to Sachsenhausen and then, in 1941, to Dachau, where he spent the rest of the war.
In the first years, there were several instances where judges refused to apply the Nazi anti-Semitic world view and continued to treat Jews as ordinary legal subjects. This even prevailed as late as in 1941 in the famous Berlin coffee case. Willi Seidel, a judge of one of Berlin’s district courts, refused to fine 500 Jews who had tried to collect coffee after the city authorities had announced extra coffee rations for the population. He was expelled from the Party and moved from the criminal to the civil bench due to his “lack in political attitude through a serious misconception of the Jewish issue.”
The decisive moment
Despite such instances of opposition from judges, the judiciary and the legal order soon surrendered and became an active instrument of oppression. What happened? One decisive moment, I believe, was when the SA in April 1933 forced their way into courthouses all over the country and assaulted and physically expelled lawyers and judges of Jewish origin. The other judges mostly stood by and let it happen. The shame and the guilt that this implicated them in must have been a strong psychological factor. This brought most of the judges to submission and explains why rulings such as the ones reviewed above were the exception, even though the Nazis systematically broke with established laws and legal principles. Sebastian Haffner tells of deliberations among judges that he overheard as a young referendar, where older and experienced judges were subdued to nonsense lectured to them by a young Nazi-appointed judge. They were ashamed and obedient, coerced to depart from enforcing the law as they knew it.
Present day resistance in Hungary and Poland
The German judges acted in accordance with the prevailing judicial habitus of not engaging into politics when the regime took moves to curb the judiciary and limit the independence of the judiciary. They did not actively protest, they did not take to the streets, and they did not engage to warn the citizens. This is not particular to Germany or to the twentieth century. On the contrary, most judges are reluctant to get into what they perceive as politics and seem to perceive inaction as a necessary part of the judicial role.
In the past decades we have been able to observe judicial reactions to democratic backsliding both in Hungary and Poland. While judges in Hungary have seemed to adopt the typical restrained approaches, the Polish judiciary have become an exemplary case of mobilization.
The brave actions by the Polish judiciary have contributed to changing the game. No longer can one claim that passivity is a demand of the judicial role. In the case of Żurek v. Poland, the European Court of Human Rights pronounced that
“the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defense of the rule of law and judicial independence when those fundamental values come under threat”. (paragraph 222)
Judges now have a duty to protest when the rule of law and judicial independence is under attack.
Increasingly we can see a new phenomenon of judges engaging in open political action in defense of the rule of law. Hungarian judges recently protested en masse against judicial reforms, which could arguably undermine judicial independence. Judicial resistance can be defined as actions of judges – individual and collective, in and out of court – undertaken to oppose various political activities that are aimed at undermining judicial independence and are in violation of the law (Bojarski 2025 forthcoming). The rise of protests from the judiciary against attacks on the rule of law show that judicial resistance can take many forms. What we can learn from the Polish judges is the magnitude and duration of their resistance, participation across all judicial levels, collaboration with civil society organizations and the entire legal complex, public support, strategy, and a diverse resistance toolbox. Judges today are much better equipped than the German judges were.
US judges must be prepared
The US judges need to be alert and valiant to protect the liberal democracy of the United States. They must be vigilant to the arrival of any decisive moments that could entrap them into submission. If and when the administration turns against the independence and functioning of the judiciary, they must be ready to speak out. We can already observe such measures at the state level. This, in itself, should be sufficient grounds for the judges of America to mobilize, and they should at least prepare for the possibility of such measures being pushed at the federal level. The experience of Germany shows that it is in the initial stages that judges may make a difference. Once the regime is entrenched, it may be too late.
