In a week marked by legal drama and high-stakes constitutional debate, the U.S. Court of Appeals for the 9th Circuit found itself at the center of a national reckoning over presidential power, judicial oversight, and the specter of martial law. The issue? Whether the judiciary can—or should—check President Donald Trump’s authority to deploy the National Guard in American cities, particularly in response to political protests. The stakes, as several judges warned, could not be higher for the future of American democracy.
The controversy erupted as the 9th Circuit, long seen as a bellwether for judicial trends in the United States, grappled with the boundaries of executive power. According to Slate, Judge Ryan Nelson, a Trump appointee, argued forcefully that courts have no authority to halt the president’s domestic mobilization of the Guard. Nelson’s view, shared by some of his colleagues, is rooted in the belief that the executive branch must be given wide latitude—especially in times of declared emergency.
But other judges on the court could not disagree more. Judge Susan Graber, in a sharply worded dissent issued on October 25, 2025, sounded the alarm about what she saw as an imminent threat to the rule of law. “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,” Graber wrote, as reported by Slate. Her words were not just directed at her fellow judges but at the American public, whom she implored to keep faith in the courts even as the country teeters on the edge of constitutional crisis.
This direct appeal—what legal analyst Mark Joseph Stern described as "breaking the fourth wall"—is rare for the judiciary. Yet, as Stern noted in his conversation with Dahlia Lithwick, Graber’s urgency reflects a broader sense of crisis among some federal judges. “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 9th Circuit can correct this error, but because she knows that the judiciary is the last buffer between us and tyranny,” Stern explained, according to Slate.
Judge Marsha Berzon, another prominent voice in the debate, issued her own extraordinary dissent. She warned 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.” As el-balad.com summarized, Berzon’s warning was clear: unchecked executive power could push the United States toward martial law, where military force trumps the very principles that define American democracy.
Judge Ronald Gould added yet another layer of historical gravity to the court’s warnings. Drawing a direct line to the Kent State shootings—a tragic episode in American history where National Guard troops killed four unarmed students during a protest—Gould cautioned that the country was “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.” His warning, echoed in Slate and el-balad.com, underscored the real and present danger of violence if judicial oversight is cast aside.
All of this comes against the backdrop of deep division within the 9th Circuit itself. The court, once known for its liberal leanings, is now home to a significant number of conservative judges, many appointed by President Trump. This ideological split was on full display when, on October 22, 2025, the full court declined to reconsider an earlier decision regarding the National Guard’s deployment in Los Angeles. Despite 11 judges advocating for rehearing the case en banc, the majority held firm, a move that dissenters argued gave far too much deference to the president.
Judge Berzon’s dissent in this context was particularly pointed. She argued that the court’s refusal to intervene effectively allows the president to wield the military as a tool against political opponents, threatening the right to peaceably assemble and, by extension, the core of representative government. “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,” Slate reported.
Concerns about future abuses are not merely hypothetical. Judges and analysts alike have raised the possibility that President Trump could deploy the Guard in so-called "blue cities" during the 2026 midterm elections, either to suppress voting or to stifle political dissent. As el-balad.com noted, the fear is that military action could be used to intrude on civil liberties at a moment when democratic norms are already under strain.
For many Americans, the debate may feel abstract—until it isn’t. The notion that the judiciary is the “last buffer between us and tyranny,” as Stern put it, is no longer just a talking point in law school classrooms. It is a live question with consequences that could shape the nation’s future. The judges’ warnings, far from being academic, are a call to action: for the courts to assert their constitutional role, and for the public to demand that they do.
Yet, as the dust settles on this latest round of legal sparring, the path forward remains uncertain. The 9th Circuit’s internal divisions mirror a broader national debate about the separation of powers, the limits of executive authority, and the resilience of democratic institutions. With Congress largely sidelined and the Supreme Court perceived by some as aligned with the president, the burden on lower federal courts—and the faith placed in them by the public—has never been greater.
As Judge Graber’s dissent makes clear, the judiciary’s legitimacy depends not just on its willingness to act, but on the public’s willingness to believe in its mission. Whether that faith will be rewarded, or further eroded, is a question that remains to be answered in the months—and perhaps years—ahead.
