Former President Donald Trump frequently touted his judicial appointments as important victories for the preservation of law. But some of those wins may prove to be fleeting.
Make no mistake: Trump’s team did take a hatchet to the Supreme Court’s liberal consensus. The appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett charted a markedly more originalist course for the high court’s next few decades.
But in the lower courts, the longevity of Trump’s legacy is more tenuous. Nowhere is this more apparent than in the Ninth U.S. Circuit Court of Appeals, the country’s largest appellate court, covering California and six other Western states, as well as Alaska and Hawaii.
When Trump took office, the Ninth Circuit was the most liberal court in the country. Activists frequently used it to win outlandish cases. In one notable instance, the court found that the words “under God” in the Pledge of Allegiance violated the First Amendment. Senate Republicans, long frustrated with its antics, in 2017 attempted to break it up into two smaller circuits.
Trump and then–Senate Majority Leader Mitch McConnell pursued a more successful strategy. Near the end of Mr. Trump’s term, he successfully appointed 10 judges to the 29-seat court, an accomplishment that narrowed the Ninth’s liberal majority from a margin of 11 to three seats.
“Trump has effectively flipped the circuit,” said Ninth Circuit Judge Milan Smith at the time.
In some ways, that was true. Since the court typically hears cases in panels composed of three judges, there is currently a greater statistical likelihood that at least two originalists will be selected to adjudicate in any given case.
And the unique way that the Ninth Circuit handles en banc cases, meaning those in which the whole court issues judgment, also favors the narrow minority. Other circuits require a full bench, but because of the Ninth Circuit’s size, it operates under a system where only 11 randomly selected judges must participate in en banc matters. This arrangement often results in originalist majorities, such as in California v. Azar, an abortion rights case recently appealed to the Supreme Court.
But with President Biden eyeing more liberal judicial appointees, the chances of long-term conservative success in the Ninth Circuit appear slim. Nine reliably liberal Clinton-appointed judges are expected to move to senior status, a state of semi-retirement, in the next few months. Even with only the slimmest of Senate majorities, Biden can be assured that most of his nominees to fill those vacancies will clear the confirmation process.
Those senior status judges will still be able to hear cases once they’ve stepped aside. Any future vacancies that open up will be a gift to the Biden administration. And there’s always the possibility of court expansion: the court’s judicial conference in 2019 requested that Congress add five more appellate judges and 65 more district judges to the Ninth Circuit.
But Democrats are likely to pursue an expansion encompassing more than just the Ninth Circuit. Federal courts have not been expanded since 1990, and many advocates argue that there is an urgent need for more judges to match the growing population. Biden’s commission on court reform is expected to push for that strategy, and already House Democrats have begun to schedule hearings on the subject.
An expansion in the lower courts could prove more advantageous to Democrats than an attempt to pack the Supreme Court. The latter idea is unpopular outside of activist circles still reeling from Justice Amy Coney Barrett’s speedy confirmation. And the bulk of cases never make it to the Supreme Court anyway. No matter how contentious, most cases end at the appellate level.
If Democrats regain control over those courts, it will be a massive dent in Trump’s judicial legacy.
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