Protecting our democracy exists in the black robes of our state and federal judiciary.

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Tomorrow, Congress is set to count the votes from the Electoral College and certify Donald Trump the next president of the United States. Though his tenure won’t formally begin until noon on Jan. 20, he has already begun acting as the de facto president.

This follows Republicans taking control of both houses of Congress on Friday. Though the margin is slim, the fact is that for the next two years Republicans will control all three of the elected branches of our federal government.

If you are looking for the guardrails on MAGA extremism, it does not reside in government institutions or norms. It will not be found in legacy media newsrooms where both-sides journalism is the order of the day. Nor will you find any courage in the boardrooms of large corporations as they bow and scrape before Trump.

That leaves only the courts.

I usually use my monthly Litigation Look Ahead to focus on individual democracy cases being argued and decided. This month, however, I want to look more broadly at the judiciary. If there is a guardrail protecting democracy — and that is very much an if — it exists in the black robes of our state and federal judiciary.

Courts have three essential functions.

First, courts adjudicate disputes between parties. If two parties to a contract have a dispute, the court hears the evidence, applies the law and renders a verdict. Sometimes it does this while overseeing a jury that makes the ultimate decision.

Second, in many cases, it is the job of courts to decide what ambiguous or uncertain laws mean. Last year, the Supreme Court considered a criminal law that makes it a crime to “obstruct, influence, or impede any official proceeding.” One question the court had to decide is what qualifies as an “official proceeding.”

Finally, in some cases, courts need to decide whether the U.S. Constitution prohibits a particular government action or invalidates rule, regulation or statute. These are the cases that garner the most attention and often involve the highest stakes.

If democracy is to survive the next four years, the courts will need to…

In this month’s Litigation Look Ahead, I dive into:
* Disney’s decision to settle Trump’s defamation case against ABC News
* How Trump will use his Department of Justice
* What courts must do to safeguard against Trump’s anti-democratic actions

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