The "Dual State" Theory Was Invented to Describe Nazis. The Supreme Court Could Take Us There.

(I’ve snipped these 4 paragraphs from the article to post , but the whole article is worth the read )
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However, the justices appear to have a keen understanding, possibly intuitive, of Fraenkel’s dual state theory. In recent months, the court’s Republican wing has let Trump opt out of following the law virtually every time Trump has asked the justices for a hall pass. Covetous of their authority, this improbable winning streak—some 21 shadow docket cases—may actually signal the conservative justices’ unwillingness to cross him. They may realize that should Trump defy the court, it would mean that the court’s authority was, just as in Fraenkel’s world, an illusion of normalcy projected by the prerogative state to lull the masses into complacency.

The Republican appointed justices, to the extent the United States has become a dual state, would rather stave off such a collapse, not least because their legitimacy and power relies on such a mirage. Thus, they prefer a hidden authoritarianism to one that is out in the open. And more than anyone else, the justices are in the position to paper over Trump’s lawlessness or expose it. But this is precisely why the dual state is so dangerous: It allows the would-be autocrat to consolidate power under the cloak of democracy and norms.

Clearly, the Republican appointees are not mere victims of Trump’s authoritarian aims. Their role in the creation of a dual state began before Trump’s second term. Kim Lane Scheppele, an expert on authoritarian regimes at Princeton, has documented the ascendance of “autocratic legalism,” a modern form of authoritarianism that uses existing laws and constitutions to ultimately subvert those guardrails and establish an autocratic state. To succeed, she notes, autocrats must inherit an already weakened democracy or first weaken it substantially; a robust democracy is much harder to conquer.

Any account of America’s sclerotal democracy must include the Supreme Court. As often happens in backsliding democracies, the US’ highest court has been captured by loyalists to the autocrat. Between 2017 and 2020, Trump appointed three Supreme Court justices when, under historical precedent, at least one if not two of those seats should have gone to the Democratic president who either preceded or succeeded him. In other words, the current court is the result of a partisan plot to seize power through court appointments, enabled by a president who took office without majority support. But even before those appointments, the Supreme Court under John Roberts—he has been its chief for 20 years—was already facilitating the US’s democratic decline. From voting rights to campaign finance, the Roberts Court has repeatedly interfered with the machinery of a healthy democracy


https://www.motherjones.com/politics/2025/10/dual-state-supreme-court/


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