When Judges Become Targets: Judicial Resistance Meets Authoritarian Escalation
An endgame tactic arrives early? A judge's arrest signals a dangerous new phase.
The arrest of a sitting judge on American soil by federal agents should sound alarm bells for anyone committed to constitutional democracy. The indictment of Milwaukee County Circuit Judge Hannah Dugan on felony charges for allegedly obstructing an ICE arrest in her courtroom represents more than a local legal dispute—it signals a dangerous escalation in the erosion of institutional norms. This development becomes particularly alarming when examined against the backdrop of judicial resistance—and its systematic limits—within the US court system.
This represents a critical threshold. While authoritarian regimes typically begin undermining judicial independence through political appointments, institutional restructuring, and rhetorical attacks, the direct arrest of a sitting judge signals a dangerous new phase in democratic erosion. Such brazen physical interventions against judicial officers are relatively rare, even in declining democracies, precisely because they so explicitly violate fundamental principles of judicial independence and constitutional constraints on executive power. The fact that this is occurring now, amidst documented friction between the judiciary and the executive, suggests an alarming acceleration in the breakdown of constitutional norms within the US.
The Data of Defiance: District Courts as the Current Frontline
My ongoing analysis, tracking federal court rulings on challenges to Trump administration actions using judicial ideology scores, reveals a critical context. Far from the administration's narrative of purely "partisan" opposition from "radical left lunatics," the data shows that judges at the district court level are pushing back across the ideological spectrum.
As the data illustrates, a remarkable 63% of rulings by conservative district judges have substantively gone against the Trump administration in the cases tracked so far. This broad-based friction at the trial court level represents one of the most significant remaining bulwarks against executive overreach.
The Circuit Court Contrast: Ideology Hardens Higher Up
However, this pattern of cross-ideological resistance weakens significantly as cases move up the judicial hierarchy. Analysis of federal Circuit Court rulings reveals a starkly different picture:
At the appellate level, judicial behavior aligns much more closely with partisan expectations. Conservative Circuit Court judges are overwhelmingly ruling for the Trump administration, while liberal judges rule against it. While liberal circuit judges rule against Trump 86% of the time (30 out of 35 cases) and centrist judges 90% of the time (9 out of 10 cases), conservative circuit judges rule against the administration in only 12% of cases (3 out of 24). This clear ideological sorting stands in marked contrast to the district court pattern, where even conservative judges frequently rule against the administration. The data reinforces the conclusion that circuit courts are functioning with significantly greater partisan predictability than district courts.
This finding is consistent with patterns documented in judicial politics research, including research Maya Sen and I have conducted on estimating judicial ideology, which demonstrates that courts tend to become more politicized and ideologically predictable the higher up the judicial hierarchy you go, culminating in the Supreme Court.
This contrast carries crucial implications. It suggests that while district courts currently provide substantial friction, their rulings face a challenging path on appeal. Furthermore, the behavior of conservative Circuit judges may be influenced not only by ideology but potentially by ambition, as these positions are often stepping stones to the Supreme Court.
Tellingly, these judges are also frequently breaking with the traditional norm of judicial deference on three-judge panels, choosing to write dissents when in the minority rather than joining the majority opinion for the sake of unity. While the administration is losing most of these circuit court cases overall, conservative judges are dissenting at unusually high rates in these losses. This departure from norms isn't just about expressing disagreement; it can function as strategic signaling.
As my research with Adam Chilton and Maya Sen on the "Odd Party Out" Theory of Certiorari explores, the Supreme Court often uses ideological configurations in lower court rulings as cues when deciding whether to grant review (certiorari). Specifically, the Court is more likely to take up cases where the losing party (the petitioner) faced both an ideologically opposed panel and an ideologically opposed winning party, suggesting potential lower court bias that warrants scrutiny.
While our "Odd Party Out" research focused primarily on cert grants, applying this framework to current circuit court behavior reveals a concerning pattern. The recent increase in dissents by conservative circuit judges when ruling for Trump (in cases where the panel majority might be liberal or centrist and rule against Trump) can be interpreted through a similar strategic lens. These dissents may serve to flag cases for the Supreme Court, signaling perceived errors by the majority or highlighting outcomes inconsistent with conservative judicial philosophy, thereby inviting higher court intervention to correct the perceived mistake. This behavior underscores the heightened politicization and potential strategic maneuvering occurring at the Circuit level.
An Authoritarian Escalation Targeting the Point of Resistance
Understanding this judicial landscape—strong resistance at the district level, hardening ideology and strategic signaling at the circuit level—makes the arrest of Judge Dugan even more alarming. Historically, direct attacks on judges occur late in the authoritarian playbook. In Turkey, thousands of judges were arrested or purged following the 2016 coup attempt, but only after Erdoğan had spent years consolidating power. The judicial purge was the culmination of a long-term strategy to eliminate independent oversight. Similarly, in Venezuela in 2009, Judge María Afiuni was imprisoned after ruling against government interests—but this happened a decade into Chávez's rule, after he had secured control of most institutions. Judicial targeting typically marks the final stage of democratic collapse. The arrest of Judge Dugan—a state judge apprehended by federal agents reportedly at the direction of top political appointees—disrupts this typical timeline. It occurs while significant judicial resistance exists, specifically at the trial court level where checks on the administration are currently most effective.
The message seems strategically targeted: intimidate the judges who are actually pushing back. Why waste precious political capital attacking already largely compliant conservative circuit judges? The pressure is being applied precisely where the resistance is strongest. When even conservative district judges are ruling against the administration based on legal principles rather than political allegiance, loyalty becomes the only acceptable standard. The arrest sends a potent message to all trial judges, regardless of ideology: fall in line, or you could be next.
The Cost of Silencing Judicial Independence
An independent and non-politicized judiciary is the bedrock of the rule of law. It ensures that executive actions are bound by constitutional limits. However, a highly politicized judiciary risks undermining this very function, particularly when applying the law to political actors. Rather than consistently enforcing constitutional limits, rulings become inconsistent and predictably partisan as cases move through the appellate process, effectively functioning as an extension of political power rather than an independent check upon it.
This dynamic appears visible in the current data. District judges, including conservatives, are still largely attempting to fulfill their traditional role, applying legal principles even when it goes against the administration. But the Circuit Court data reveals how this check weakens on appeal, becoming increasingly ideologically driven. Conservative circuit judges frequently write dissents that serve as strategic signals, inviting intervention from the Supreme Court. More concerning yet, as demonstrated by the Supreme Court's conservative majority's extreme deference towards Trump—most notably in the sweeping presidential immunity decision—this pattern suggests the friction created by district courts may ultimately be just that: a temporary stopgap buying time before more politicized higher courts undo the restraints placed on the executive. The arrest of Judge Dugan thus looks like a direct assault aimed at neutralizing resistance lower down the judicial hierarchy—precisely where the application of law appears less consistently aligned with the administration's political interests and where the checks, however temporary, are currently most effective.
This isn't just about one judge in Milwaukee; it's about whether the American system of checks and balances can withstand a direct attack on its most functional judicial line of defense. The precedent, once set, becomes a tool available to any future administration seeking to silence dissent from the bench.
We are witnessing a critical stress test. The data reveals where judicial pushback is happening and where it falters. The arrest reveals a willingness to crush that pushback through intimidation. Recognizing this dynamic is the first step toward defending the increasingly fragile institutions that protect us all.
Might the inversion of the trend between the district court level and the circuit level not be an artifact of survivorship bias? Presumably the questions that get to be decided on the circuit level are "closer" than those at the district court level?
Not an expert on the US legal system, but o3 tells me that a case can be affirmed, vacated and rendered, vacated and remanded or modified on the circuit level. Remands usually contain only some specific issues with the original case, hence are more likely to be "close". And even if the case is affirmed, the alternative is not only "vacate and render" but could also be "remand" or "modify" which is less decisive and hence again likely to be "closer"
So the observed greater polarization on the circuit court level might partially be an artifact of circuit judges facing narrower legal questions and less definitive alternatives which makes the dissent along ideological lines more likely and giving voice to that dissent less consequential (and hence less costly).