For many of us, notably including lawyers for whom the courts remain the final arbiters of legality and constitutionality, the judicial branch of government has become the “go to” guardrails of government. Congress has forsaken any meaningful role in national governance, and Trump neither knows nor cares about the limits of his lawful authority. So where else are institutionalists to turn but the courts?

In a New York Times op-ed, Duncan Hosie argues that our faith in the courts is misplaced.

Most areas of the law, like contract law and criminal law, can readily handle the bad man: They simply have to ensure that the consequences of violating the law are clear enough and strong enough to dissuade even those who lack moral scruples. But constitutional law is different. It is predicated not on consequences, but on the assumption that those who occupy public office will subordinate self-interest to larger obligations of service. It does not compel compliance so much as it presupposes it. Against a bad man, it has no obvious recourse.

In this assertion, Oliver Wendell Holmes’ “bad man” is Donald Trump, the definition of which is someone who isn’t concerned with right or wrong, but only what will happen to him if he violates the law. In the past, occupants of the White House largely considered themselves subject to the law, whether because of legal consequences, morality or political reaction. Not so with Trump.

Now things are different. Mr. Trump commands the apparatus of the state, and he need not worry about losing in court — for what consequences follow if he loses? An adverse legal ruling? To prevail, he only has to continue the contest: creating uncertainty, extending the illusion of legality, imposing costs on his adversaries and converting the very fact of legal contestation into coercive leverage.

To the extent Trump engages with the legal system, it’s more performative than anything else. Courts issue orders. Trump’s minions ignores them. Courts issue orders about why the government is failing to comply with its earlier orders. Trump’s minions respond with shrugs, empty rhetoric or nonsensical excuses. Orders get appealed and circuits either try to skirt the facial confrontation that would necessarily follow if they rule against Trump, or rely on the presumption of regularity that has already died a brutal, painful death.

It’s not, as some would have it, that the problem is that courts are either captive to Trump’s whims or their decisions the product of “radical left lunatics,” as invariably proclaimed. It’s that either way, courts can’t make Trump do much of anything he doesn’t want to do, whether he’s willing to play the game of pretending judicial decisions matter or reaches the end of the road and decides to claim another path to do pretty much what he wanted to do all along. Remember, when SCOTUS held Trump’s tariffs under the IEEPA were unconstitutional, he just twisted to the right to declare tariffs now fell under Section 122.

But Hosie isn’t claiming that courts have been neutered and rendered irrelevant.

What can be done? The answer is not, of course, to abandon the courts entirely. Even in the face of Mr. Trump’s disrespect for the Constitution, courts have an important role, creating some friction and issuing rulings that can furnish the basis for accountability in the future. (Though the Supreme Court, as Mr. Trump has remade it, has largely abandoned even that responsibility.)

What this means is unclear. Friction? So courts are now reduced to a speed bump in the constitutional scheme, and that’s supposed to accomplish anything? Granted, decisions now may matter to some future president who does care about the law and constitutionality, despite the realization that a president can do whatever he pleases by just twitting or issuing an Executive Order proclaiming the law of gravity repealed, but that means the law is still subject to the whims of the executive.

So if not the courts, then what?

We should place less hope in the courts and more faith in politics. The midterm elections are the next major opportunity to check unconstrained executive power democratically. Direct action can also be effective. Consider Minneapolis. When federal authorities initiated aggressive, often violent immigration sweeps in the city, courts offered little shelter. Two federal judges recognized that federal agents were most likely engaging in racial profiling, but declined to halt the operation.

It’s possible that the midterms will reinvigorate Congress’ involvement in governance, assuming the elections are held, the SAVE Act doesn’t disenfranchise a wide swathe of voters, and the Democrats don’t do something to blow it and take control. It’s also possible that Trump will continue down the current path of complying with laws he likes and ignoring laws he doesn’t.

Hosie puts his faith in grass roots activists ready and willing to oppose Trump’s excesses.

This is the kind of opposition that Mr. Trump cannot neutralize through legal bravado. Decentralized community resistance cannot be summoned to court, deprived of institutional standing or worn down through legal fees.

What Hosie fails to appreciate is that Trump’s “legal bravado” is merely a performance of his pretending to care about law. When that show closes, does he really expect Trump to go quietly into the night? To his ballroom, maybe?