WASHINGTON – President Donald Trump’s biggest achievement in office has been a conservative transformation of the federal judiciary. But the Supreme Court showed in the space of two weeks that it hasn’t gone far enough to satisfy the political right.
On Trump’s side of the ledger: Two hundred new federal judges. Fifty-three appeals court judges, just two short of President Barack Obama’s tally over eight years. Three appeals courts “flipped” to having a majority of judges named by Republican presidents. Two impeccably conservative Supreme Court justices.
On the other side: The chief justice of the United States, John Roberts.
The nation’s 17th chief justice has parted with the 45th president in three major cases over a span of 15 days, once with the help of Associate Justice Neil Gorsuch, one of Trump’s nominees. On abortion rights, LGBTQ rights and the DACA program for undocumented immigrants, Roberts cast his lot with the court’s liberals.
Those rulings – and there are more to come, including on the president’s personal battle with House Democrats and New York prosecutors over access to his financial records – represented a temporary setback for Trump, Senate Majority Leader Mitch McConnell and the conservative legal movement.
But the president’s judicial nominations and the Republican Senate’s confirmations over 3½ years moved the federal courts further to the right than any president since Ronald Reagan and now represent a more permanent bulwark against the progressive agenda.
“The Trump transformation of the federal judiciary is a huge, grand-slam conservative success,” says Mike Davis, a former counsel to the Senate Judiciary Committee who clerked for Gorsuch and helped navigate the confirmation of Trump’s second nominee, Associate Justice Brett Kavanaugh.
The president’s nominees to federal circuit and district courts are generally in their 40s and 50s, giving them decades to fulfill their lifetime appointments. They are 85% white and 75% male.They include conservative legal stars such as Amy Coney Barrett on the U.S. Court of Appeals for the 7th Circuit and Neomi Rao on the U.S. Court of Appeals for the District of Columbia Circuit. It was Rao who last week ordered the case against former national security adviser Michael Flynn dismissed.
And they include extremely young up-and-comers such as Justin Walker, the newest member of the district Circuit that has been the stepping-stone to many Supreme Court justices, including four on the high court today. Walker, 38, could serve for a half-century.
“Given the age of Trump’s nominees, there will be a lasting impact of those new judges on the courts for decades,” says Elliot Mincberg, senior fellow at the liberal organization People for the American Way. “If Trump has four more years, it’s hard to imagine that he would not completely dominate the federal courts of appeals, and the Supreme Court for that matter.”
Flipping appeals courts
For most Americans, Trump’s impact on the courts has happened beneath the radar. But what an impact it has been.
Three circuit courts – the 2nd, based in New York; the 3rd, based in Philadelphia; and the 11th, based in Atlanta – were dominated by Democratic presidents’ nominees when Trump came into office. Now Republican presidents’ nominees are in the majority in each.
Four circuit courts with jurisdiction over the nation’s midsection, from Ohio to Texas to North Dakota, are now overwhelmingly controlled by Republican presidents’ nominees. And even the historically liberal 9th Circuit, based in San Francisco and with nine states stretching from Montana to Hawaii, has moved within striking distance of a GOP-nominated majority.
Those courts are where nearly all federal appeals stop; the Supreme Court hears fewer than 100 cases per year. So most disputes involving civil rights, reproductive rights, voting rights, the environment, gun control, consumer protection and other issues are settled in the courts where Trump has had his greatest impact.At the Supreme Court, Trump’s impact is already being felt. While Gorsuch and Kavanaugh have veered from conservative dogma on occasion – and often have opposed each other – they have been generally reliable. In the last two weeks, for instance, Kavanaugh voted with conservatives on all four of the biggest cases: LGBTQ rights, DACA, abortion and religious school choice.
And then there is Roberts, whose votes often are viewed both by conservatives and liberals as strategic in order to cast the court in the best possible light. To the chief justice, that usually means taking an incremental approach.
“It appears that the chief justice is making decisions based on a consideration of the political ramifications of the case, rather than its legal merit,” says Carrie Severino, president of the conservative Judicial Crisis Network. “He is not only not a Trump nominee, but ironically he is the motivating factor behind the way Trump chooses his nominees – specifically to avoid another John Roberts.”
For Trump to get a firmer handle on the high court would take another vacancy, but that does not appear likely this year. Two liberal justices in their 80s, Ruth Bader Ginsburg and Stephen Breyer, are unlikely to retire during his watch. The two oldest conservative justices, Clarence Thomas and Samuel Alito, have shown no signs of stepping down.
“To really transform the judiciary, you need eight years,” says Curt Levey, president of the conservative Committee for Justice. “Even then, typically most of the judges on the judiciary will not be ones that you appointed.”
For Trump to win reelection, however, likely will take a major push from the conservative legal establishment and evangelicals concerned first and foremost about abortion rights.
In that sense, Roberts’ roadblocks could give Republicans a boost by increasing conservatives’ incentive to vote.
“They won’t score a touchdown until they’ve overturned Roe v. Wade,” says Nan Aron, president of the liberal Alliance for Justice, referencing the landmark 1973 decision that gave women the right to choose. “And until the Supreme Court overturns Roe v. Wade, it will be a rallying cry for the right wing and for politicians running for office.”
The political left, which over the years has not been as motivated about the courts, has undergone a metamorphosis since 2016 when Republicans blocked Obama’s effort to fill the seat left open when Associate Justice Antonin Scalia died. The seat stayed empty for Gorsuch the following year.
Then in 2018, liberals became even more motivated by Kavanaugh’s nomination to succeed retiring Associate Justice Anthony Kennedy, who had been the court’s swing vote. Kavanaugh’s conservative record on the district Circuit and sexual assault allegations from the 1980s that he denied resulted in a razor-thin, 50-48 confirmation.
In the wake of Kavanaugh’s vote Monday against striking down Louisiana’s restriction on abortion clinics, liberal groups already are targeting Republican senators such as Maine’s Susan Collins who supported his confirmation. It is one of several signs that Kavanaugh, Roberts and the federal courts will play a key role in the election.
“We could be looking at a Trump supermajority on the Supreme Court if he’s reelected,” says Christopher Kang, a former White House lawyer in the Obama administration now serving as chief counsel to the liberal group Demand Justice. “You’re going to start seeing progressives and Democrats caring about the courts, too.”