The law is meant to be my servant and not my master,
still less my torturer and my murderer – James Baldwin
The legacy of Nuremberg is with us once again, less as a
reminder of the power of the legal system to punish those who enabled and
enacted the horrors of Nazi Germany than as a warning that the spirit of
Nuremberg must be reclaimed as a moral and political imperative. That spirit
matters at a time when the Supreme Court is increasingly turning the law into
an instrument of reactionary concentrated power, desecrating morality,
crippling the foundations of democracy, and reproducing
the worst dimensions of gangster capitalism.
Nuremberg made clear that judges and other officials
cannot use the authority of law to cover up and legitimate actions that are
morally depraved and politically destructive. Its lesson for the present is
stark: when law is emptied of justice and used to normalize cruelty, annihilate
democratic rights, and place concentrated power beyond accountability, legality
itself becomes a weapon in the destruction of democracy. The reactionary Court
has become part of a political order whose governing ethos increasingly
resembles what Jeet
Heer, writing of Trump, calls being “besotted by the romance of
gangsterism.”
The
recent Supreme Court ruling allowing the Trump administration to expand the use
of its citizenship-verification database is more than another dispute over
how elections should be administered. By a 6–3 vote, the Court lifted a
lower-court order blocking the Department of Homeland Security from using an
expanded version of the SAVE database, now linked to Social Security records,
to assist states in checking voter eligibility. The danger is hardly abstract. As
Stephen Prager reports in Common Dreams, the database contains known
errors, raising the possibility that “many eligible voters may be at risk of
having their voter registration wrongfully cancelled just weeks before midterm”
elections.
The immediate electoral consequences may nevertheless be
limited: federal law generally prohibits systematic removals from voter rolls
within 90 days of a federal election. That safeguard does not eliminate the
risks of erroneous removals or the privacy concerns raised by the plaintiffs,
but it constrains the scale of systematic voter purges in the weeks immediately
preceding the election. The ruling does not require states to use the system,
and the underlying legal dispute remains unresolved, though the Court signaled
its preliminary view of the merits, stating that the challengers’ claims
“likely lack merit” and that it would likely reverse the district court’s
finding that the administration had violated federal law.
Nor
has the Court simply rubber-stamped every administration effort to rewrite
election rules: earlier this month, it blocked Trump’s attempt to impose
sweeping new restrictions on mail voting before the midterms. The significance
of the latest ruling therefore lies not in claiming that every decision moves
in the same authoritarian direction, but in confronting what happens when the
nation’s highest court repeatedly removes barriers to concentrated power,
strengthens an increasingly authoritarian presidency, and provides legal cover
for a political project that attacks voting rights, intensifies racial
exclusion, and aligns the machinery of the state with white-nationalist
politics. What is being placed at risk is not simply constitutional restraint,
but democracy itself.
Yet the significance of these decisions cannot be grasped
if they are treated simply as isolated legal disputes. Walter
Benjamin’s notion of “profane illumination” offers another way of reading
them: the particular can suddenly illuminate the larger social forces condensed
within it. As
AK Thompson, drawing on Benjamin, argues, particular events can alert us to
“the broader social process from which [they] derive.”
Read in this way, the
Court’s rulings are not merely discrete constitutional decisions. They are fragments of a larger political transformation
in which concentrated executive power, racial exclusion, the political power of
wealth, attacks on voting rights, and the weakening of democratic restraints
increasingly converge.
The task is not to claim that every ruling is fascist,
but to recognize what these decisions illuminate when viewed together: the
emergence of a political order in which democratic institutions are
increasingly reorganized to serve authoritarian ends. Fascism becomes visible not
simply in a single spectacular act, but in the accumulation of institutional
changes that make concentrated power appear lawful, ordinary, and legitimate.
The danger becomes clearer when law itself ceases to
restrain authoritarian power and begins to legitimate it. That is why Germany
in 1933 matters—not as a historical equivalent, but as a warning about what
happens when legality itself is turned against democracy.
The comparison with Hitler’s Enabling Act of March
1933 must therefore be made carefully. The situations are not equivalent.
Passed amid intimidation, political repression, and the exclusion of Communist
deputies, the
Enabling Act allowed Hitler’s government to make laws without parliamentary
approval, even when they violated the Weimar Constitution. It did not
merely weaken German democracy. It supplied the legal machinery for destroying
it.
The point lies not in equating the two moments but in
recognizing a political mechanism. Fascism does not need to abolish the law to
seize and weaponize its authority. The
Nazis captured courts, the civil service, education, culture, and
administrative institutions and bent them toward authoritarian ends.
Democracy was not attacked from outside. Its own institutions were seized,
emptied of their democratic substance, and turned against the people they were
supposed to protect.
After visiting the National Holocaust Museum in
Amsterdam, legal scholar Kim
Wehle observed fascism does not always arrive through spectacular acts of
force; it can also advance “by operation of law.” The historical warning should
be taken seriously. Authoritarian power becomes especially dangerous when
repression no longer appears as a violation of legal authority but is enabled
through it, drawing upon the legitimacy, procedures, and institutional
protections of law itself.
The warning resonates in the present: in the expansion of
detention and mass-deportation machinery, the military occupation of American
cities, overt and dangerous attacks on free speech and the press, and the
political cleansing of educational institutions. What was once unthinkable is
being transformed into policy, while cruelty becomes routine and
authoritarianism is woven into the everyday machinery of the state and everyday
life.
German
judges offer a particularly chilling example. The judiciary did not mount a
serious institutional resistance to the Nazi seizure of power. Much of the
legal establishment accommodated itself to the new regime. Dictatorship thereby
acquired one of its most powerful weapons: the appearance of legality. Law
remained in place, but its political function changed. It authorized power in
the service of domination and mass destruction rather than restraining it.
But the question is not simply how authoritarian
governments capture the law. It is whose interests the law protects, whose
power it strengthens, and whose suffering it renders invisible. Fascism cannot
be understood solely as the triumph of authoritarian leaders or the collapse of
constitutional safeguards. Its history is inseparable from the relationship
among political repression, class power, and the economic interests that
support and benefit from authoritarian rule.
That is where the warning reaches the present. No single
Supreme Court ruling is an American Enabling Act. The danger lies in
accumulation: voting
protections weakened, presidential power enlarged, the political power of
concentrated wealth fortified, and the capacity to challenge executive power
narrowed. What is being transformed is not simply constitutional doctrine
but the political function of the Court itself. An institution charged with
checking concentrated power is increasingly constructing the legal architecture
that enables it.
Chief
Justice John Roberts has rejected the charge that the Court has become a
political institution, complaining that too many Americans now view the
justices as “political actors.” But the deeper issue is not whether the
justices behave like elected politicians. It is whether the Court is using the
authority of law to make authoritarianism appear constitutionally legitimate.
When voting rights are weakened, presidential immunity
expanded, concentrated wealth granted greater political power, and barriers to
executive authority dismantled, the Court does more than interpret law: it
alters the conditions under which democracy can survive. Law becomes a weapon
of concentrated power, and constitutional authority becomes its shield. It is
not merely failing democracy. It is helping to construct the legal machinery
for its destruction. The abuse of law does more than legitimate a culture of
cruelty; it helps make cruelty appear normal.
As Susan Neiman argues in Call It
Evil: Understanding the Trump Era, one of the great dangers of the
present moment lies in the normalization of evil, a process through which
cruelty becomes ordinary, injustice appears acceptable, and the unthinkable
acquires the force of common sense.
When cruelty and state violence are sanctioned by law,
the terror of the unthinkable is absorbed into the language of common sense.
Images of Gestapo-like ICE agents beating peaceful protesters become just
another spectacle in the daily flow of violence, stripping brutality of its
capacity to shock, outrage, and provoke resistance. What follows is the slow
death of conscience itself.
The Court has
increasingly shifted power upward, away from voters, legislatures, lower
courts, and independent agencies and toward the presidency and the Court itself.
In this sense, it has become a criminogenic institution: not because its
justices themselves are criminals, but because its decisions can create the
legal conditions under which abuses of power become harder to prevent,
challenge, or punish. Under such circumstances, democracy is being strangled
and the guardrails meant to protect it have become instruments for disabling
it.
Citizens United
v. FEC (2010) struck down restrictions on independent political
expenditures by corporations and unions, vastly expanding the ability of
private wealth to shape electoral politics. It did not formally declare that
“corporations are people” or authorize unlimited direct corporate contributions
to candidates. It did something more politically consequential: it strengthened
the constitutional power of corporations and concentrated wealth to shape
political speech, allowing economic power to exercise an increasingly powerful
influence over politics and democratic life.
Elon
Musk’s expenditure of more than a quarter-billion dollars supporting Trump
and Republican candidates in 2024 offers a stark illustration of the political
world that followed. There is a longer and darker history at work here. The
Supreme Court has repeatedly stood not outside the history of American white
supremacy but within it. Dred Scott constitutionalized Black exclusion
from citizenship; the post-Reconstruction Court helped destroy federal
protections for Black freedom; and Plessy gave Jim Crow the sanction of
constitutional law.
The Warren Court broke decisively with important parts of
that history, but the Roberts Court has driven the country backward. Representative
Jamie Raskin puts the point starkly, arguing that the Court has “returned
to the historic baseline of political White supremacy,” particularly through
its dismantling of voting-rights protections. The language has changed, but the
political work of racial domination does not require the vocabulary of Dred
Scott or Plessy. It can operate through the allegedly neutral
language of colorblindness, states’ rights, electoral integrity, and
constitutional restraint—stripping history from the law while disabling the
democratic means for confronting the racial hierarchies that history produced.
That history bears directly on the Court’s assault on
voting rights. In
Shelby County v. Holder (2013), the Court struck down the coverage formula
that made the Voting Rights Act’s preclearance system operative, disabling one
of the law’s most powerful protections against discriminatory voting rules. Brnovich
v. Democratic National Committee (2021) narrowed the terrain
further by making certain Section 2 challenges to voting restrictions more
difficult.
In Louisiana v.
Callais (2026), the Court went further, holding that Section 2 did not
require Louisiana to create the additional majority-Black district at issue and
that the resulting race-based district could not survive constitutional
scrutiny. The decision further narrowed the legal terrain on which racial
representation and voting rights can be defended.
The Court’s assault on established rights has extended
beyond voting. In
Dobbs v. Jackson Women’s Health Organization (2022), it overturned Roe
v. Wade and Planned Parenthood v. Casey, eliminating the federal
constitutional right to abortion that had stood for nearly half a century and
returning the power to regulate abortion to the states.
Dobbs was more
than the destruction of a longstanding reproductive right. It demonstrated the
willingness of the Court’s conservative majority to use its power to strip away
an established constitutional protection on which generations of women had
relied.
The Court has simultaneously enlarged presidential power.
In Trump
v. United States (2024), it created a constitutional doctrine of
presidential criminal immunity: absolute immunity for actions within the
president’s core constitutional authority and at least presumptive immunity for
other official acts, while leaving unofficial conduct unprotected. The decision
fundamentally altered presidential accountability by giving presidents new
constitutional protection against criminal prosecution for exercises of
official power.
The pattern has only intensified. In Trump
v. CASA (2025), the Court sharply restricted the power of lower federal
courts to issue universal injunctions against executive action. In Trump v.
Slaughter (2026), it expanded presidential control over independent
regulatory agencies. In National
Republican Senatorial Committee v. FEC (2026), it struck down limits on
coordinated spending between political parties and candidates.
And now, with the citizenship-database ruling, the Court
has allowed the administration, while litigation continues, to expand a system
that states can use to challenge voter eligibility. Different cases, different
doctrines, but the same political trajectory: power concentrated in the
presidency, protected for the wealthy, and increasingly insulated from
democratic constraint.
The Enabling Act helped clear the way for Gleichschaltung,
the coordination of German political, social, and cultural life with the
Nazi state. Political parties disappeared, trade unions were abolished, state
governments were subordinated, the civil service was purged, and education,
law, culture, and professional life were brought under Nazi control. Within six
months, Germany had ceased to be a multiparty democracy.
The question, then, is not whether the United States is
Germany in 1933. History does not repeat itself on command; instead, it leaves
warnings written in its ruins. Primo Levi understood this with extraordinary
clarity when he warned that “every
age has its own fascism,” whose signs appear wherever “the concentration of
power denies citizens the possibility and the means of expressing and acting on
their own free will.”
Fascism, in this sense, need not return wearing the
uniform of the past. It emerges through the institutions, technologies, fears,
and forms of power particular to its own historical moment.
The ghost of Nuremberg nevertheless hangs over this
history. Among the lesser-known proceedings that followed the trials of the
major Nazi leaders was the 1947
Jurists’ Trial, in which judges, prosecutors, and officials of the Reich
Ministry of Justice were prosecuted for their participation in a legal system
that had transformed persecution and state violence into instruments of law.
The analogy must not be abused: the crimes prosecuted at Nuremberg and the
decisions of the present Supreme Court are not historical equivalents.
But the principle that emerged from those proceedings
remains indispensable. Judicial office does not place those who wield the law
beyond questions of responsibility. The robe cannot become a sanctuary from
accountability when law itself is turned into an instrument of authoritarian
power. As
the judgment in the Nuremberg Jurists’ Trial put it with unforgettable force,
“The dagger of the assassin was concealed beneath the robe of the jurist.”
The lesson for the present is not that America requires
another Nuremberg tribunal. It is that democracy cannot survive if those who
exercise immense judicial power are imagined to stand beyond democratic
accountability simply because their decisions arrive clothed in the language of
constitutional law.
The deeper question raised by the Roberts Court is
therefore not simply whether particular rulings are conservative, reactionary,
or profoundly unjust. It is what forms of accountability become necessary when
a nation’s highest court repeatedly uses the authority of law to dismantle the
very conditions that make democratic accountability possible in the first
place.
That question cannot be separated from the politics of
memory. As Marcelo Rubens Paiva argued in a 2015 interview cited in Cristina
Buarque de Hollanda and José Szwako’s Disputed Pasts, “not
having a Nuremberg trial in Brazil in the 1980s contaminated the process of
democratization and our current democracy.” The warning is crucial.
The
demands of resistance must also include the work of remembrance: counting,
documenting, preserving, and publicly naming the legal abuses, democratic
injuries, and moral violations committed under the cover of institutional authority.
The record must be kept, not for vengeance, but because democracy cannot defend
itself against abuses it has been taught to forget. There can be no
manufactured innocence for those who use the authority of their offices to
legitimate the machinery of authoritarian power, and no political amnesty
purchased through national amnesia.
That is why the struggle over law is also a struggle over
memory, responsibility, and the future. When institutions created to restrain
power are reorganized to serve it; when courts turn domination into doctrine;
when concentrated wealth acquires constitutional protection while democratic
rights are stripped away; and when authoritarian measures no longer need to
violate the law because they arrive bearing its authority, silence becomes a
form of complicity and forgetting becomes an invitation to normalize once again
the cruelties, crimes, and authoritarian practices that memory was meant to
prevent.
What is often missed in analyzing law as an instrument of
domination is its role as a pedagogical force. Law does more than prohibit,
punish, and exclude. It teaches people who counts as a political agent, who has
access to power, and who has the right to participate in decisions that shape
their lives.
When law becomes a mechanism of exclusion and
disposability, it denies particular groups both political rights and access to
the institutions and public spaces in which they can understand how power
works, develop a critical consciousness, imagine alternatives, and create
solidarities through social movements, education, and cultural work. Legalized
illegalities function as forms of exclusion that weaken the conditions in which
people learn to interpret their experiences, understand their place within relations
of power, and act collectively to change them.
This repressive use of the law restricts political agency
while also attacking the conditions necessary for its development. This is a
form of pedagogical terrorism in which law is used to weaken the knowledge,
social relations, and collective capacities necessary to recognize, resist, and
transform oppressive relations of power.
There is an even more ominous logic at work here, one
that moves beyond the politics of disposability toward what Brad Evans and I
have called a politics of disappearance (forthcoming in Theory,
Culture,& Society). Disposability abandons populations deemed
economically or politically surplus; disappearance goes further by erasing the
social, legal, historical, and moral conditions through which their lives can
be publicly recognized and their suffering made visible.
The U.S. Supreme Court’s recent decision to
temporarily allow the Trump administration to resume third-country deportations
makes this distinction especially urgent. Migrants can now be sent to
countries with which they have no connection, without the protections required
by the lower court to contest the danger of persecution or torture. Justice
Sonia Sotomayor warned in the Court’s earlier intervention in the same
litigation that the policy could expose “thousands to the risk of torture or
death.”
This is more than a politics of expulsion. It points toward a politics
of disappearance historically associated with fascist and authoritarian
regimes, in which those marked as unwanted are removed from the spaces of legal
protection, public visibility, and moral responsibility. They enter what might
be called a “vortex of erasure,” where criminalization, surveillance,
detention, bureaucratic exclusion, forced removal, and organized forgetting
reinforce one another.
Recognizing how law can be turned into an instrument of
authoritarian power also raises the question of what will be required to undo
the damage it has sanctioned and made possible. Fascism does not always
announce itself by smashing the legal order. It can advance by capturing that
order, hollowing it out, and turning the machinery of democracy against
democracy itself.
If democracy is ever to be rebuilt from the damage of the
present, the task will not be to forgive and forget in the name of national
unity, civility, or a return to normal. It will be to remember, to document, to
judge, and, where the law permits, to hold accountable those responsible for
abuses of power. No amnesia. No manufactured innocence. No impunity. Without
truth and accountability, there can be no democratic future.
Henry A. Giroux currently holds the McMaster
University Chair for Scholarship in the Public Interest in the English and
Cultural Studies Department and is the Paulo Freire Distinguished Scholar in
Critical Pedagogy. His most recent books include: The Terror of the Unforeseen
(Los Angeles Review of books, 2019), On Critical Pedagogy, 2nd edition
(Bloomsbury, 2020); Race, Politics, and Pandemic Pedagogy: Education in a Time
of Crisis (Bloomsbury 2021); Pedagogy of Resistance: Against Manufactured
Ignorance (Bloomsbury 2022) and Insurrections: Education in the Age of
Counter-Revolutionary Politics (Bloomsbury, 2023), and coauthored with Anthony
DiMaggio, Fascism on Trial: Education and the Possibility of Democracy
(Bloomsbury, 2025). Giroux is also a member of Truthout’s board of directors.
-CounterPunch
