The coup, known as the Kapp Putsch, quickly collapsed. The leaders of the Social Democratic Party (SPD) have called for a general strike, that is, for every adult in the capital to take to the streets, stop working and thus paralyze the military government. The electricity went out, the newspapers were shut down, the bureaucracy shut down. The strike worked: a few days later, the putsch was over.
You might expect that after a failed coup, its leaders would have been arrested, tried and punished. But you would be wrong. Many military conspirators were released, and parliament passed an amnesty law later that year. Few of those brought to justice were actually convicted by the notoriously conservative Weimar courts.
The Weimar Republic, Germany’s first experiment in democracy, was a fragile creature. After all, it collapsed into Nazism only 14 years after its creation. But what you might not know is that German judges were deeply complicit in the demise of the republic. While we tend to think of the 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 is an important lesson for us as we face a radically conservative Supreme Court that seems determined to undermine our own democracy today.
The Weimar Republic was born after the defeat of Germany in the First World War. German Emperor Kaiser Wilhelm II was ousted from the throne on November 9, 1918, and SPD politicians quickly proclaimed a democratic republic. A new constitution was drafted the following year in the provincial city of Weimar, leading contemporaries to call it the Weimar Republic. In many ways, the constitution was a utopian document, emancipating 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 following the November Revolution, the country’s new socialist rulers struck a diabolical bargain with the former conservative establishment. Friedrich Ebert, the new Chancellor, agreed with military leaders that he would not purge the officer corps and that he would support his suppression of Communist uprisings throughout the country. The judiciary was also left largely intact. Composed of conservative judges from Imperial-era high society who yearned for the restoration of the monarchy, the courts remained deeply hostile to democracy.
The judges’ antagonism to the republic has never been more evident than in their treatment of far-right terrorism. The early years of the republic were a deeply violent time, as demobilized soldiers returned home and joined paramilitary organizations known as the Freikorps. Putsches and rebellions swept across the country, and political assassinations were the order of the day. Between 1919 and 1923, far-right terrorists murdered at least 400 people. But while the courts have happily tossed the book on leftists involved in communist uprisings, they have responded mildly to right-wing vigilantes. On average, courts sentenced far-right 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 who had instigated the Kapp putsch), the assassins were quickly sent abroad. They would not be tried until decades later, after the end of World War II. When Foreign Minister Walter Rathenau was killed in 1922, most of his killers were released with light prison sentences.
And when Adolf Hitler tried to overthrow the republic in 1923 during the infamous Beer Hall Putsch, 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. Aided and abetted by justice, far-right terrorists are murdered with complete impunity.
In the mid-1920s, the Weimar Republic stabilized and experienced its golden age. But when the Great Depression destroyed the global economy in 1929, the republic entered its death spiral. Extremist parties began to gain larger shares of votes. In 1932, the Nazi Party became the largest bloc in parliament. Between 1929 and the Nazis’ rise to power in 1933, a series of conservative chancellors ruled by emergency decree, establishing a virtual dictatorship with the support of Reich President Paul von Hindenburg. By the time Hitler was appointed Chancellor in January 1933, democracy had already withered.
In this dismantling of democracy, the judiciary again played a key role. In the summer of 1932, the arch-conservative Chancellor Franz von Papen proposed replacing the Prussian state government 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 chosen by the central government was patently unconstitutional. Moreover, he gave the Conservatives control of the huge Prussian police force, control that would prove decisive for the Nazis when they consolidated power a year later.
The pissed off Social Democrats appealed the order to the German Constitutional Court. The court initially rejected their request for an injunction – after all, the judges did not want to preempt their judgment. Then, months later, they issued a weak decision which, in essence, upheld the constitutionality of Papen’s usurpation of the Prussian government. The Weimar judiciary had struck its last and most consequent blow against the republic. After Hitler came to power, the courts proved enthusiastic partners with the Nazi regime – so much so that American occupation officials dedicated one of the 12 Nuremberg trials to the Nazi justice system, the ” Trial of the Judges” commemorated in the film “The Judgment at Nuremberg”. ”
Today, we are once again confronted with a justice that is hostile to democracy. Lower court judges appointed by Donald Trump have shown disturbing deference to the former president as well as the insurgents who stormed the US Capitol on January 6, 2021. Over the past decade, the Conservative majority on the Supreme Court took an ax to electoral protections while simultaneously empowering states to take democracy down. This term, the court’s radical supermajority could endorse a fringe theory that could empower state legislatures to ignore presidential election results and submit lists of hand-picked electoral colleges. Such a decision would sound the death knell for democracy in America.
While there are obvious differences between the 1920s and the 2020s – miraculously the United States has yet to reach Weimar’s level of political violence, and most of our judges still take their oaths seriously the Constitution – it is clear that Trump’s four years in office have transformed our judicial system into one that is much more hostile to democracy. The question arises: will our elected officials overcome our undemocratic judges before it is too late?