The Case Against Despair in Trump’s Second Term
9 min read
When Donald Trump returns to the White House next year, American democracy won’t end. His power will be checked by Congress, the Supreme Court, the 50 states, and civil society. So says David Cole, who knows more than most about reining in the excesses of elected officials: In 2017, he became national legal director at the American Civil Liberties Union, overseeing a legal department of about 200 and serving as counsel in all of its cases that went before the Supreme Court.
Now, as he returns to Georgetown University’s law faculty, I asked him to reflect on the ACLU’s successes and failures, pressed him on some of its most controversial positions, and probed his faith in America’s ability to protect civil liberties. For Cole, the ultimate protector of the Constitution is civil society, by which he means all institutions outside of government that we create, work in, and associate with––he noted advocacy groups such as the ACLU and the Federalist Society; media outlets such as The Atlantic and Fox News; universities; protest movements; professional associations; trade unions; and religious groups. “Without civil society, we would not have the rights we enjoy today,” he told me. “I have faith in its power and resilience.” What follows is an edited version of our correspondence.
Conor Friedersdorf: The Republican Party will control both Houses of Congress next year. The Supreme Court now has six justices who were appointed by Republican presidents. This makes some Trump critics fear that he will be unconstrained in ways that threaten the future of democracy. What makes you think that America’s checks and balances will continue to work as intended?
David Cole: Republicans controlled Congress during the first two years of Trump’s first term, and had a 5–4 majority on the Court. Yet Trump was unable to enact almost any significant legislation. He tried—and failed—to repeal Obamacare. He had the worst win-loss record in the Supreme Court of any president in history. His own appointees rejected his claims that he was immune from subpoenas for his tax records. While Trump has appointed about 28 percent of federal judges, Barack Obama and Joe Biden have appointed about 65 percent. And the ACLU has won many cases before judges appointed by Trump. Courts, at the end of the day, favor the establishment; the demand that they follow precedent requires that. So they can often serve as a check against those who seek to violate long-standing norms and principles reflected in our legal tradition.
Friedersdorf: The ACLU filed more than 400 legal actions against the first Trump administration. What do you say to critics who fear that excessive litigation threatens democracy by impeding elected officials?
Cole: The courts are critical to our constitutional democracy. Their role is to check government action that is unconstitutional or otherwise illegal. I’m as opposed to frivolous litigation as anyone. But the ACLU seeks judicial relief only where we believe that people’s rights have been violated. It does not impair democracy to stop illegal government conduct. Among many other successes during the Trump administration, we stopped the cruel policy of separating infants from their parents [in immigration detention], invalidated illegal anti-asylum policies, won access to abortion for undocumented teens held in federal custody, barred Trump’s effort to put a citizenship question on the 2020 census, and barred him from refusing to count immigrants in the official census.
Friedersdorf: Early in his first term, Trump issued an executive order that suspended travel for nationals of seven countries, all majority-Muslim. His lawyers argued that terrorists from those countries might infiltrate the United States. Muslims from other countries were unaffected. Why did you believe Trump’s approach was illegal?
Cole: The Constitution requires the government to maintain neutrality vis-à-vis religion. The Iraqis the ACLU represented in its first case against the Muslim ban had been granted visas because of their work with the U.S. military––no one thought they were terrorists––but were denied entry at JFK Airport simply because they were from Iraq, a Muslim-majority country. Just as it would violate the establishment clause to bar entry of Catholics or Jews, it violates that clause to exclude people simply because they come from majority-Muslim countries. And Trump repeatedly promised to ban entry by Muslims. The “terrorism” justification was an after-the-fact rationalization.
Friedersdorf: The ACLU succeeded in temporarily stopping Trump’s order. And no terrorist attacks ensued. But later, the Supreme Court ruled in Trump v. Hawaii that the travel ban did not violate the law. Should the ACLU be more risk-averse in the cases that it brings, to avoid what it sees as bad precedents from a Supreme Court that it often disagrees with?
Cole: Many righteous cases have lost in the Supreme Court—from Dred Scott to Plessy v. Ferguson to Korematsu. None of them were mistakes to bring, in my view. The mistake would have been to accede to deeply offensive and unlawful policies out of fear that one might lose.
The ACLU always considers all risks when it contemplates bringing lawsuits, and will continue to do so. But when a president seeks to exclude Muslims because they are Muslim, the right thing to do is challenge it. We obtained injunctions against the first, second, and third versions of the Muslim ban. Our victories meant many fewer people were barred from the country, and the third version of the ban, which the Supreme Court upheld, was considerably narrower than the first two.
Friedersdorf: You’ve written about fears that Trump will “prosecute his enemies, conduct mass deportations, further restrict access to abortion,” and more. You urge “resistance over resignation.” Isn’t targeting enemies and other unlawful presidential behavior different from deporting people who are in the U.S. illegally?
Cole: Trump can deport immigrants [who are] here unlawfully. But he cannot deport people without due process. Hundreds of thousands of deportation cases are already pending; we lack enough immigration judges to process them. Trump has opposed hiring more. If he seeks “mass deportations” by denying immigrants their constitutional right to a day in court, the ACLU will challenge that.
Friedersdorf: You note that “another constitutional restraint on the president’s power is federalism.” What are some ways that you expect states to challenge the Trump administration’s agenda?
Cole: Red-state attorneys general sued Biden over what they considered his illegal initiatives; blue-state attorneys general will do much the same to Trump. In addition, federalism means that many aspects of our lives—including education, criminal law, and policing—are largely governed by states. So states can refuse, for example, to enforce federal immigration law, and can resist efforts to censor their school curricula. States cannot fall below the minimum level of rights guaranteed to all by the U.S. Constitution. They can offer greater protections—and often do.
Friedersdorf: Some observers worry that the ACLU has moved away from defending free speech. Are they correct in any respect?
Cole: For decades, some critics have charged that the ACLU is less committed to the First Amendment than it once was; but none of these critics can point to a single instance in which we declined to defend First Amendment rights. We have always defended the right to free speech of all. For recent examples in which we have defended the speech rights of conservatives, fundamentalists, Trump supporters, racists, anti-Semites, and more, see my blog post “Defending Speech We Hate.” Just this year, we represented the NRA in a First Amendment case. So it’s simply not correct that the ACLU has moved away from defending free speech.
Friedersdorf: After the 2024 election, Adam Jentleson, a Democrat and former Senate staffer, wrote, “When Kamala Harris was running for the Democratic nomination in 2019, the ACLU pushed her to articulate a position on surgeries for transgender prisoners, needlessly elevating an obscure issue into the public debate as a purity test, despite the fact that current law already gave prisoners access to gender-affirming care. This became a major line of attack for Mr. Trump … Now, with the G.O.P.’s ascent to dominance, transgender Americans are unquestionably going to be worse off.” What do you think of his critique?
Cole: The ACLU is a nonpartisan organization that defends the civil liberties and civil rights of all. We believe, and many courts have ruled, that it is sex discrimination to deny medical treatment for gender dysphoria to a prisoner, for whom the government is obligated to provide all medically necessary treatment. Our defense of unpopular rights may not be politically advantageous to any particular candidate. But our obligation is to the Bill of Rights, not any candidate or political party.
Friedersdorf: I’m glad the ACLU will defend the legal rights of trans people regardless of public opinion. And it is acting in accordance with its long-standing principles when it fights workplace discrimination or insists that medical choices should be made by doctors and patients.
But many civil libertarians want sports to be segregated by biological sex, and don’t see that as a rights violation. They don’t understand it as discriminating on the basis of gender, but rather, holding gender irrelevant: You can play sports no matter your gender, much as you can play no matter your race, so long as you join a team with your sex. What’s wrong with having sports teams of biological males or females, rather than teams of people who identify as men or women? Aren’t sex-based differences in physiology more relevant to physical competitions than one’s internal sense of self, or gender?
Cole: Consider Lindsay Hecox, a transgender student at Boise State. She wanted to run cross-country on the women’s team to participate without denying her gender identity—a right all cisgender students enjoy. She was not especially fast; when she won the right to try out, she didn’t make the team. So, instead, she opted for club soccer. But Idaho categorically bans any participation by transgender girls in girls’ sports—even club sports, even where no one objects.
Sports federations around the world have recognized that trans girls and women can participate in women’s sports without undermining competitive fairness where they have taken treatment to counter whatever advantage their sex assigned at birth might otherwise have provided. The state laws we have challenged bar their participation even where they have no competitive advantage.
That’s wrong. The goal of fair competition can be met without flatly excluding trans girls and women. As long as everyone is on a level playing field, what justifies excluding a transgender woman from women’s club soccer? No one else has to deny who they are to participate in school sports.
Friedersdorf: Are there any issues related to civil liberties where you think Trump or the Trump administration got it right, or where critics of Trump acted in ways that violated his civil liberties?
Cole: We have stood up for Trump when we believed his own rights were infringed. We objected when Twitter and Facebook excluded Trump, because we believe the social-media platforms should err on the side of including speech rather than silencing speakers. We spoke out in his defense when a judge ruled that he may have committed incitement at a rally. We filed an amicus brief objecting to the breadth of the gag order placed on Trump in connection with the January 6 prosecution in D.C. And we supported aspects of the Trump administration’s Title IX regulations. We act not for the sake of opposing Trump, but for the purpose of defending civil liberties.
