Judges are warning us we’re on the fast track to martial law.

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If there is one question everyone in America is trying to game out at this moment, it’s this one: Can the judiciary impose meaningful checks on President Donald Trump’s ability to deploy the National Guard in American cities to retaliate against political protests? The U.S. Court of Appeals for the 9^th Circuit grappled with that question over the past week, although it failed to reach anything approaching consensus. On one side, Judge Ryan Nelson (a Trump appointee) argued that courts have no authority at all to halt the president’s domestic mobilization of the Guard. Several of his colleagues believe that courts must give immense deference to the executive branch’s decision that an “emergency” necessitates the use of troops. Still others have warned that judges have a duty to carefully review—and, when necessary, block—any unlawful deployment within the United States.

On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed this increasingly heated dispute, and why some members of the court have warned that it amounts to a trial by fire for American self-governance. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: I want to flag some of the language from Judge Susan Graber’s dissent. And it’s shocking because, in a deep sense, she’s not just talking to her colleagues, to other judges on the 9^th Circuit. She’s talking to us. Toward the end, she wrote: “I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.”

This is very much in the key of judges trying to tell us that they are pinned under a heavy collapsed refrigerator and that we—​​the rest of us—have to put some skin in the game. It is literally a judge telling Americans who are shrugging—who say, “Well, there’s nothing the courts can do”—to pull it together.

Mark Joseph Stern: She’s breaking the fourth wall, which is something judges do only in case of emergency. She’s reaching out directly and asking us not to lose faith in the judiciary. And I get it, because I am actively losing faith in the judiciary. But I think Graber is urging us to hold on, not only because she believes that the full 9^th Circuit can correct this error, but because she knows that the judiciary is the last buffer between us and tyranny. This is the paradox you and I have been living with since Jan. 20, right? The judiciary is badly corrupted by Trump and his appointees. There are real limits on its ability to enforce the law. The Supreme Court itself is frequently in Trump’s pocket. And yet, in so many cases, the only real check on Trump’s abuses of the law is the courts. It’s the federal judges who are going to either step up or shrink from their duty. That’s true at least until Congress reasserts itself, which isn’t going to happen anytime soon.

So I really admired the way Graber closed this dissent. Frankly, I think more judges need to do this kind of thing. People are losing faith in our judicial system. They’re questioning why federal courts even exist if they aren’t going to stand up to the worst abuses of executive power in American history. And I guess Graber is telling us to hang on—that if we keep the faith, soon enough the courts will show us why they still deserve to be trusted as guardians of liberty.

This dovetails so nicely with the conversation Joyce Vance and I had on the main show, which is that giving up is not an option—as vindicating as it would feel to say: Hey, why do we need Article 3 judges in the first place? Now, weirdly, we all face this question of how we stand up for judges who may themselves feel as though Brett Kavanaugh and Amy Coney Barrett are going to flip a coin at the end of the day. Their answer is: You keep believing in this judicial project, you hold us to it, and you get very, very loud. And that’s what I think Graber is asking us to do.

Mark, on top of this Portland decision, we also had an order from the 9^th Circuit involving the National Guard in Los Angeles from this past summer. And 11 judges indicated that they believe Trump’s deployment of the Guard in American cities is not only illegal but a threat to self-governance itself. This court was once known as the most liberal hippie circuit, but it’s now populated by a lot of conservatives, and there is an internal war going on. And I guess the question is: Will that massive divide get resolved soon?

It needs to, because it’s a hot war now, right? On Wednesday, the full court declined to reconsider the L.A. decision en banc, but 11 judges said it should have, because the majority gave way too much deference to the president. Judge Marsha Berzon wrote an extraordinary dissent in which she asserted that without careful judicial review of the Guard’s domestic deployment, “this country could devolve into one in which the use of military force displaces the rule of law, principles of federalism, and the federal separation of powers, all fundamental precepts of our democracy long understood as protecting the liberties of individuals and the assurance of self-governance.”

Let’s be clear what Berzon is warning about here: It’s martial law. She is warning that we are on a path to martial law if the courts are not allowed to enforce the strict limits on the domestic peacetime enforcement of the National Guard by the president. She is warning that our representative government is on the brink of disaster, if not extinction, if the courts allow the president to send in the military every time there are protests and dissent that he doesn’t like, wielding the troops as a weapon against his perceived political opponents.

I think she’s dead right, of course. But I also think there’s a tendency among a lot of people to dismiss all this because the Guard hasn’t yet committed any obvious, egregious, and violent violations of the Constitution, as far as we know. And, in a separate dissent, Judge Ronald Gould warned us that could happen. He raised the specter of the Kent State shootings and said that we are basically gambling on this happening again very soon, perhaps multiple times, if the president continues to deploy a force into American streets that is trained to fight foreign wars.

Gould and Berzon are really ringing the alarm about as loud as a sitting federal judge possibly can about what happens when judges sideline themselves forevermore, as one of their colleagues argued for last week.

There are different ways this could play out: Trump sending the Guard into blue cities during the 2026 midterms to try to suppress votes, or crush political dissent in the streets, then destroy the right to peaceably assemble. But no matter how it happens, we are on a path toward something that looks a lot like tyranny. It certainly doesn’t look a lot like democracy.

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