The Weimar Republic warns the USA about their judges

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It was spring 1920 and troops were marching towards Berlin. Conservative officers who had helped the Weimar Republic defeat communist insurgents now turned against the politicians running the country. Paramilitary forces occupied the capital and forced panicked leaders to flee. They declared Wolfgang Kapp, a minor civil servant, to be the new Reich Chancellor. It was neither the first nor the last time that the radical right threatened the fledgling democracy.

Known as the Kapp Putsch, the putsch quickly failed. Heads of government of the Social Democratic Party (SPD) called for a general strike – which means that all adults in the capital take to the streets, stop work and thus paralyze the military government. The electricity went out, the newspapers were shut down, the bureaucracy closed its doors. The strike worked: the putsch was over a few days later.

One might expect that after an unsuccessful coup, its leaders would have been arrested, tried, and punished. But you would be wrong. Many of the military conspirators were dismissed, and Parliament passed an amnesty bill later that year. Few of the accused were actually convicted by Weimar’s notoriously conservative courts.

The Weimar Republic, Germany’s first experiment in democracy, was a frail creature. After all, it disintegrated only 14 years after it was founded under National Socialism. But what you may not know is that the German judges were deeply complicit in the fall of the republic. While we tend to think of courts as guard rails of democracy, in Germany in the 1920s they were among the most implacable and insidious enemies. And their role in the rise of Nazism offers an important lesson for us as we face a radically conservative Supreme Court that seems intent on undermining our own democracy today.

The Weimar Republic was born after Germany’s defeat in World War I. Germany’s emperor, Kaiser Wilhelm II, was ousted from the throne on November 9, 1918, and SPD politicians were quick to proclaim a democratic republic. The following year, a new constitution was drafted in the provincial city of Weimar, dubbed the Weimar Republic by contemporaries. In many ways, the Constitution was a utopian document that disenfranchised women, eliminated censorship, and sought to establish a truly universal democracy after centuries of monarchical rule.

But Weimar also had a darker side. In the days following the November Revolution, the country’s new socialist leaders struck a hell of a deal with the old conservative establishment. Friedrich Ebert, the new chancellor, agreed with the military leaders not to purge the officer corps and to support its suppression of communist uprisings across the country. The judiciary also remained largely unaffected. Staffed by upper-class, conservative, imperial-era judges who yearned for the restoration of the monarchy, the courts remained deeply hostile to democracy.

The hostility of the judges towards the republic was never as clear as in dealing with right-wing terrorism. The Republic’s early years were a deeply violent period, as demobilized soldiers returned home and joined paramilitary organizations known as the Freikorps. Coups and rebellions erupted across the country, and political assassinations were commonplace. Between 1919 and 1923, far-right terrorists murdered at least 400 people. But while courts were happy to toss the book to leftists involved in communist uprisings, they responded leniently to right-wing vigilantes. On average, courts sentenced right-wing assassins to just four months in prison; Leftists received an average of 15 years.

When former Vice-Chancellor Matthias Erzberger was assassinated in 1921 (by members of the same paramilitaries that instigated the Kapp Putsch), the assassins were quickly lured abroad. They would not be tried until decades later, after the end of World War II. When Foreign Minister Walter Rathenau was assassinated in 1922, most of his assassins got away with light prison sentences.

And when Adolf Hitler tried to overthrow the republic in the infamous Beer Hall Putsch in 1923, the court handed down a five-year sentence, of which the Nazi leader served less than a year. His co-conspirator Erich Ludendorff was acquitted. Supported and instigated by the judiciary, right-wing terrorists are murdered with practically no impunity.

In the mid-1920s, the Weimar Republic stabilized and experienced its golden years. But when the Great Depression collapsed the world economy in 1929, the republic fell into its death spiral. Extremist parties began to win larger shares of the vote. In 1932 the NSDAP became the largest bloc in parliament. Between 1929 and the National Socialists’ seizure of power in 1933, a number of conservative chancellors established a de facto dictatorship by emergency decree with the support of Reich President Paul von Hindenburg. By the time Hitler was appointed Chancellor in January 1933, democracy had already dried up.

In this dismantling of democracy, the judiciary again played a key role. In the summer of 1932, the arch-conservative Chancellor Franz von Papen moved to replace the Prussian state government with his own cronies. A vast federal state containing two-thirds of the country’s population, Prussia was one of the last bastions of democratic government in Germany. Papen’s order to replace the state government with one elected by the central government was patently unconstitutional. Additionally, it gave the Conservatives control of the massive Prussian police force, a control that would prove crucial for the Nazis as they consolidated power a year later.

The unnerved Social Democrats complained against the decision before the Federal Constitutional Court. The court initially rejected her application for an injunction – after all, the judges did not want to prejudge their verdict. Then, months later, they issued a dimwitted decision that essentially upheld the constitutionality of Papen’s usurpation of the Prussian government. The Weimar judiciary had struck its last and most momentous blow against the republic. After Hitler came to power, the courts proved zealous partners in Nazi rule – so much so that American occupation officials dedicated one of the 12 Nuremberg trials to the Nazi judicial system, the “RichterTrial” referenced in the film Judgment of Nuremberg. ”

Today we are once again confronted with an anti-democratic judiciary. Lower court judges appointed by Donald Trump have paid a disturbing deference to the former president, as well as to the insurgents who stormed the US Capitol on January 6, 2021, to channel electoral protection while empowering states to end democracy. In this term, the court’s radical supermajority could endorse a fringe theory that could authorize state legislatures to ignore presidential election results and produce handpicked lists from the electoral colleges. Such a verdict would be the deathblow of democracy in America.

While there are obvious differences between the 1920s and 2020s – miraculously, the United States has yet to come close to the level of political violence that Weimar has, and most of our judges still take their oaths to the Constitution seriously – it is clear Trump’s four years in office have transformed our judiciary into a far more anti-democratic one. The question is: will our elected officials rein in our anti-democratic judges before it’s too late?

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