It was spring of 1920, and troops were marching on Berlin. Conservative officers, who had helped the Weimar Republic defeat communist insurgents, were now turning on the politicians who led the country. Paramilitary units occupied the capital, forcing panicked leaders to flee. They declared Wolfgang Kapp, a minor civil servant, the new chancellor of the German Reich. It was neither the first nor last time that the radical right would menace the young democracy.
The coup, known as the Kapp Putsch, quickly collapsed. Government leaders from the Social Democratic Party (SPD) called for a general strike — that is, for every adult in the capital to take to the streets, stop working and thereby paralyze the military government. Electricity halted, newspapers shut down, the bureaucracy closed its doors. The strike worked: A few days later the putsch was over.
You might expect that after an unsuccessful coup its leaders would have been arrested, tried and punished. But you’d be wrong. Many of the military conspirators were let off, and the parliament passed an amnesty law later that year. Few of those brought to trial were actually convicted by Weimar’s notoriously conservative courts.
The Weimar Republic, Germany’s first experiment with democracy, was a frail creature. After all, it collapsed into Nazism only 14 years after its creation. But what you might not know is that Germany’s judges were deeply complicit in the republic’s demise. While we tend to think of courts as the guardrails of democracy, in 1920s Germany they were among its most implacable and insidious enemies. And their role in the rise of Nazism holds an important lesson for us as we confront a radically conservative Supreme Court that seems intent on undermining our own democracy today.
The Weimar Republic was born in the aftermath of Germany’s defeat in World War I. Germany’s emperor, Kaiser Wilhelm II, was forced off the throne on Nov. 9, 1918, and politicians from the SPD quickly proclaimed a democratic republic. A new constitution was drafted the following year in the provincial town of Weimar, leading contemporaries to term it the Weimar Republic. In many ways the constitution was a utopian document, enfranchising women, sweeping away censorship and aspiring to establish a truly universal democracy after centuries of monarchical rule.
But Weimar also had a darker side. In the days after the November revolution, the country’s new socialist leaders struck a devil’s bargain with the old conservative establishment. Friedrich Ebert, the new chancellor, agreed with military leaders that he would not purge the officer corps and that he would support its suppression of communist uprisings around the country. The judiciary too was left largely untouched. Staffed with conservative, upper-crust judges from the imperial era who yearned for the restoration of the monarchy, the courts remained profoundly hostile to democracy.
Judges’ antagonism toward the republic was never more evident that in their handling of right-wing terrorism. The early years of the republic were a profoundly violent time, as demobilized soldiers returned home and joined paramilitary organizations known as the Freikorps. Putsches and rebellions cascaded across the country, and political assassinations were the order of the day. Between 1919 and 1923, far-right terrorists assassinated at least 400 people. But while courts happily threw the book at leftists involved in communist uprisings, they responded mildly to right-wing vigilantes. On average, courts sentenced right-wing assassins to a mere four months in prison; leftists received on average 15 years.
When former vice chancellor Matthias Erzberger was murdered in 1921 (by members of the same paramilitary that had instigated the Kapp Putsch), the assassins were quickly spirited abroad. They would only stand trial decades later after the end of World War II. When foreign minister Walter Rathenau was killed in 1922, most of his assassins were let off with light jail terms.
And when Adolf Hitler attempted to overthrow the republic in 1923 in the infamous Beer Hall Putsch, the court handed down a five-year sentence, of which the Nazi leader served less than one year. His co-conspirator Erich Ludendorff was acquitted. Aided and abetted by the judiciary, right-wing terrorists murdered with virtual impunity.
In the mid-1920s, the Weimar Republic stabilized and enjoyed its golden years. But when the Great Depression crashed the world economy in 1929, the republic entered its death spiral. Extremist parties began to win greater shares of the vote. In 1932, the Nazi party became the largest bloc in parliament. Between 1929 and the Nazi assumption of power in 1933, a string of conservative chancellors governed by emergency decree, establishing a virtual dictatorship with the support of Reich President Paul von Hindenburg. By the time Hitler was named chancellor in January 1933, democracy had already withered.
In this dismantling of democracy, the judiciary again played a key role. During the summer of 1932, the arch-conservative chancellor Franz von Papen moved to replace the state government of Prussia with his own cronies. Prussia was a massive federal state, encompassing two-thirds of the country’s population, and was one of the last bastions of democratic government in Germany. Papen’s order to remove the state government and impose one selected by the central government was blatantly unconstitutional. Moreover, it gave the conservatives control of Prussia’s massive police force, control that would prove decisive for the Nazis when they consolidated power a year later.
The enervated social democrats appealed the order to Germany’s constitutional court. The court first denied their request for an injunction — after all, the judges didn’t want to preempt their judgment. Then, months later, they handed down a weak-kneed decision that, in essence, confirmed the constitutionality of Papen’s usurpation of the Prussian government. The Weimar judiciary had struck its last and most consequential blow against the republic. After Hitler came to power, the courts proved eager partners in Nazi rule — so much so that American occupation officials dedicated one of the 12 Nuremberg trials to the Nazi justice system, the “judges’ trial” memorialized in the film “Judgment at Nuremberg.”
Today, we are again confronted with a judiciary hostile to democracy. Lower-court judges appointed by Donald Trump have shown a disturbing deference to the former president as well as to the insurrectionists who stormed the U.S. Capitol on Jan. 6, 2021. Over the last decade, the conservative majority on the Supreme Court has taken an ax to voting protections while simultaneously empowering states to gerrymander democracy out of existence. This term, the court’s radical supermajority may endorse a fringe theory that might empower state legislatures to ignore the results of presidential elections and submit handpicked electoral college slates. Such a ruling would be the death-knell of democracy in America.
While there are obvious differences between the 1920s and the 2020s — miraculously the United States does not yet have anywhere near the level of political violence that Weimar did, and most of our judges still take their oaths to the Constitution seriously — it’s clear that Trump’s four years in office reshaped our judiciary into one far more hostile to democracy. The question arises: Will our elected officials rein in our anti-democratic judges before it is too late?
