For many Americans, Donald Trump will be remembered as the first American president to have been indicted twice, to have supported, even incited, an insurgency against democracy and to have left thousands of dead because of its failure. lamentable to lead the nation in the fight against the pandemic of covid19. But for many other Americans, his real legacy will be his lasting impact on the third branch – federal justice.
The expansion of executive power and the decrease in legislative power due to the partisan stalemate is a well-known story. Governing by decree has become the new norm. But it was the stealthy and steady rise in power of the judiciary that caught many Americans off guard.
Federal judges are appointed for life. Once appointed, they remain in office until their retirement or death. The president appoints each federal judge and these appointments have very long-term consequences. A look at Trump’s nominations record reveals a relentless commitment to cementing his particular and idiosyncratic ideology. In short, he and his sidekick, former Majority Leader Mitch McConnell, did all they could to solidify an actively conservative justice system.
The numbers tell a clear story. There are a total of 816 active federal judges comprising the Supreme Court, the 13 courts of appeal and 91 district courts. In a single term, Trump was able to appoint 28% of those judges due to past and continuing vacancies. Most importantly, he appointed 33% of the nine U.S. Supreme Court justices and 30% of the appellate judges. The vast majority of its appointments were white males – none of its 54 appellate judges are black. But what really stands out is the age of his appointees. The average age of its appellate judges was 47 (five years younger than those selected by Barack Obama). Six of them were in their 30s and 20 were under 45. In contrast, of the 55 appellate judges chosen by Obama – in eight years, not four – none was in their thirties and only six were under 45.
Trump’s judicial appointments will shape American jurisprudence for decades to come. The Federal Judicial Center has found that this age disparity means Trump’s judges will serve 270 years longer than Obama’s judges, and they will decide thousands more. In addition, the average tenure of a Supreme Court judge has increased from 15 years in the early 1970s to 27 years more recently, largely due to the young age of the judges on the date of their appointment.
Trump’s legacy of judicial appointments is most apparent in the recent behavior of the Supreme Court. A new term has been coined – the shadow dossier – which refers to the sudden surge in emergency requests filed by the government. In the 16 years leading up to the Trump presidency, only eight such requests were made, and of those, only four were granted. In contrast, during Trump’s four-year tenure, 41 such requests were made, of which 24 were granted – a 70% success rate that supported Trump’s policies. These cases are heard without a full briefing, without oral argument, and often result in a barely single order as opposed to a full reasoned opinion.
One of those rulings overturned, by Order 5-4, a Wisconsin trial court order allowing an extension for the receipt of mail ballots. The last-minute Supreme Court ruling the day before the election created chaos and confusion. A second example of how the now-pro-Trump court backed his policies concerned his administration’s rule prohibiting migrants from seeking asylum in the United States before seeking it in countries they had passed through. The lower court suspended the application of this unprecedented rule, but the Supreme Court allowed the ban to take effect immediately even as the case moved to the lower courts. Another particularly disturbing example involved four death penalty cases where a lower court suspended four executions because the use of pentobarbital to kill prisoners would constitute cruel and unusual punishment. In a 5-4 decision, issued after 2 a.m., the suspension was overturned and at least one of the executions was carried out – the first federal prisoner to be executed in 17 years.
More recently, in another emergency appeal, the Supreme Court refused to block the newly enacted Texas law banning abortion after six weeks of pregnancy, allowing this rule to be enforced for the foreseeable future. This emergency request was brought by abortion providers after the very conservative Fifth Circuit Court of Appeals, to which Trump had appointed six judges, prevented the trial court from holding a hearing to determine whether the new law could come into force immediately. A month later, a trial judge blocked the entry into force of the law and the Fifth Circuit was quickly reversed. The Department of Justice is now appealing this decision to the Supreme Court.
In each of these cases, the Supreme Court deprived the parties concerned of a chance to be fully heard and often deprived appellate courts of the possibility of reviewing the decision of the lower courts. This unprecedented haste and unwelcome acquiescence in the executive branch created the impression that the Supreme Court was no longer an independent and co-equal branch of government, but rather a partner of the executive branch led by Trump.
Many Americans are now questioning the integrity of the court and are jumping on the bandwagon to demand Supreme Court reform. Reform proposals include imposing term limits on Supreme Court judges to ensure that no judge or group of judges controls the outcome of cases for decades to come. It should be noted that the three judges appointed by Trump were 48, 49 and 53 when they joined the tribunal, ensuring decades of influence from these judges. A variation of this proposal would require the mandatory retirement of all federal judges at the age of 70 or 75.
Another more controversial proposal is to expand the tribunal. This proposal is, in part, a response to the widespread belief that two of President Obama’s appointments were stolen. The first was the vacancy caused by the death of Antoninus Scalia. Obama’s candidate for that seat was blocked by Republicans for 10 months, allegedly due to the proximity of the next presidential election, while the second was Amy Coney Barrett’s quick and record-breaking confirmation just days before a presidential election.
Other proposals include reforming the shadow dossier by requiring a briefing, argumentation and reasoned opinion on all urgent matters; impose a code of conduct and ethics on supreme court judges similar to that binding on lower court judges; require a qualified majority of 6 to 3 before declaring a federal law unconstitutional; and require Congress to consider any presidential nomination within a specified time frame – perhaps 45 days after the nomination.
The growing support for some or all of these reforms by many non-partisan organizations, academics and Democratic politicians is a response to the discontent created by Trump’s unprecedented manipulation of the federal judicial appointment process, designed to ensure that his policies and policies will control the lives of future generations. Trump’s brazen capture from the Supreme Court, crafted with the help of the Republican majority in the Senate, requires a bold response. If reform efforts fail, which is likely due to obscure Senate rules, Trump will have succeeded in entrenching his regressive, if not destructive, political agenda. It may be good for Trump’s legacy, but it sure is bad for the country.