Austin Sarat
Writing in the wake of the 2016 presidential election and anticipating what American life would be like under Donald Trump, M. Gessen offered some rules for surviving autocracy. Rule #1 in her list of six was: “Believe the autocrat. He means what he says. Whenever you find yourself thinking, or hear others claiming, that he is exaggerating, that is our innate tendency to reach for a rationalization.“
In Gessen’s view, Trump “has received the support he needed to win, and the adulation he craves, precisely because of his outrageous threats…” And she predicted that Trump would begin his march toward autocratic rule “by trying to capture members of the judicial system.”
In retrospect, both Gessen’s prediction about capturing members of the judiciary as well as her admonition to “believe the autocrat,” seem to have been and to be right on the money. And one sign of Trump’s success in capturing judges is the way his MAGA allies on the bench (especially on the Supreme Court) persistently discount what the president says when they consider whether what he does is discriminatory and illegal.
On July 6, United States District Court Judge Algenon Marbley schooled his judicial colleagues on the importance of heeding Gessen’s advice. In a case about the legality of the US Citizenship and Immigration Service’s refusal to consider providing “immigration benefits” to foreign nationals from Burma, Canada, Iran, Nigeria, Syria, Tanzania, and Venezuela, all of whom “have been in the United States for years and already have received prior authorization to work here,” Judge Marbley highlighted of anti-immigrant statements made during and after Trump’s campaigns for the presidency.
Believe the autocrat.
His refusal to ignore what Trump says stands in marked contrast to Supreme Court Justices like John Roberts and Samuel Alito. In their opinions, they invite us to turn a blind eye to the president’s long record of ugly and inflammatory anti-immigrant rhetoric. As the Atlantic’s Adam Serwer puts it, for them, “any pretext will do.”
But what Roberts and Alito have done discredits the Court on which they serve and, at the same time, insults the American people by trying to convince them not to believe what they hear. It is one thing for an aspiring autocrat to try to convince people to believe what he says rather than what they know to be true.
It is quite another for Justices who are duty-bound to honor truth to do so.
This is not a recent development. The willful blindness of the Court to the source and significance of the president’s anti-immigrant rhetoric was a key factor in its 2018 decision upholding his ban on immigration from predominantly Muslim nations.
The plaintiffs in that case asked the Court to pay attention to what the president had said about Muslim nations during his 2016 campaign and after he took office, claiming that his ban “was motivated not by concerns pertaining to national security but by animus toward Islam.” They asked the Court to believe Trump’s words and to draw logical inferences from them.
The Court didn’t bite.
However, it did point out that “while a candidate on the campaign trail, the President published a ‘Statement on Preventing Muslim Immigration’ that called for a ‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’.. Then-candidate Trump also stated that ‘Islam hates us’ and asserted that the United States was ‘having problems with Muslims coming into the country’ …Shortly after being elected, when asked whether violence in Europe had affected his plans to ‘ban Muslim immigration,’ the President replied, ‘You know my plans. All along, I’ve been proven to be right.’”
Writing for a 5-4 majority, Chief Justice John Roberts refused to take seriously the contention that President Trump’s “words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.” In his view, “the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
His answer: “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’”
That bizarre sentence would not have survived the sharp eye of a scrupulous sixth-grade English teacher, but they were enough for Roberts to make light of the president’s words.
Fast forward to June 25, 2026, when the Supreme Court gave the administration the green light to withdraw Temporary Protected Status from more than 300,000 Haitian and 6000 Syrian residents of the United States. Following Roberts’ example, Justice Alito acknowledged that the president had made “statements (that) associate these immigrants with crime and other social ills….(and) broadly denigrate the countries for which TPS designations have been granted—including Haiti—portraying them as hellish places in which to live. And fourth, some statements malign Haitians who have come to the United States.”
But in a see-no-evil, hear-no-evil gesture, Alito brushed all that away, holding that none of the statements… “was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” He wrote them off as standard fare for the political rhetoric of our era, which “is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements…concerning Haiti and Haitian immigrants to this country—exemplify this development.”
As Justice Elana Kagan pointed out in her dissent, the “statements by the President (are) so repellent and racially inflected that the majority declines to put them in print….The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”
Believe the autocrat.
That brings us back to Judge Marbley. On page 3 of his opinion, he starts a long section entitled “Executive Branch Rhetoric.” There, as Justice Kagan does, he quotes extensively from statements made by the President and Vice President during the 2024 campaign. For example, he quotes what the president said on September 18, 2024. “if you let them (migrants) in , Its’ going to be hell, they are vicious, violent criminals…Where do they come from? The Congo…”
Marbley also recalled JD Vabce’s outrageous claim that Haitian immigrants were abducting and eating pets in Springfield, Ohio, and the president’s statement on December 9, 2025, calling for “a Permanent pause on 3rd world immigration, including from hellholes like Afghanistan, Haiti, Somalia, and many other countries.”
And in a particularly telling moment, the judge noted, “this general hostility to immigration contrasts with an apparent interest in and preference for the migration of white people.”
Marbley insisted that such statements “are important because they provide significant background and frame the issues at stake.” He added, “This court is not and cannot be blind to the backdrop against which the challenged policies were implemented. President Trump, Vice President Vance, former (Homeland Security) Secretary Noam, and the executive branch as a whole have issued statement after statement that ‘in their racial undertones and overtones alike’ (evince) a hostility towards many immigrants from particular countries.” ‘
For Marbley, words matter, especially when they are uttered by powerful people. That’s why he rightly labeled the contention that they were irrelevant, “frankly preposterous.”
When we read judicial opinions like those of Justices Roberts and Alito, we should remember Gessen’s rules for “surviving in an autocracy and salvaging your sanity and self-respect.”
Believe the autocrat. MAGA Justices may not want us to do so but Judge Marbley offers a powerful reminder that doing so matters.
Austin D. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is an internationally renowned scholar whose interdisciplinary work examines law in relation to culture, violence, and the liberal arts. His academic foundation includes a B.A. from Providence College (1969), an M.A. (1970) and Ph.D. (1973) from the University of Wisconsin, and a J.D. from Yale Law School (1988). He has also received honorary degrees, including an LL.D. from Providence College (2008) and an A.M. from Amherst College (1984). Sarat has also been awarded the Jeffrey B. Ferguson Memorial Teaching Prize at Amherst in 2022 and the Ronald Pipkin Service Award as well as many others
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