Nuremberg’s Warning: When Law Legitimates the Machinery of Authoritarianism by Henry Giroux

 

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