By: Mark Joseph Stern – slate.com – December 27, 2018
Few presidents have done as much to reshape the federal judiciary during their first two years in office as Donald Trump. Aided by the Federalist Society and former White House Counsel Don McGahn, Trump has packed the courts with staunch conservatives in record time. He has already installed two Supreme Court justices, 30 appeals court judges, and 53 district court judges, far outpacing Barack Obama. His pace may increase in the new year as Republicans gain a larger majority in the Senate. Most of Trump’s judicial picks are white men, and many are in their 30s and 40s. If history is any guide, some of Trump’s judges will still be serving in 2068.
The vast majority of these nominees are loyal to the Federalist Society and adhere to its party line. They oppose abortion, affirmative action, campaign finance restrictions, gun control, and LGBTQ rights, while staunchly supporting executive power (at least when a Republican is in the White House) and religious liberty (at least for Christians). In 2018, conservative judges zeroed in on two clear priorities: abortion access and the right to bear arms. They’ve plainly concluded that a majority of the Supreme Court is ready to overturn Roe v. Wade and expand the Second Amendment. The question now is whether they’ve calculated correctly.
Trump’s impact on the judiciary can be felt in two ways. First, there’s the influence of his own nominees on the bench—how they shape the law with their own hands. Second, there are the reverberations that his Supreme Court selections have on lower courts. When Justice Anthony Kennedy served on SCOTUS, district and appeals courts recognized that they had little hope of reversing Roe or implementing an extreme view of the Second Amendment. As soon as Kennedy stepped down, however, some lower courts felt free to unleash their jurisprudential preferences, confident that Kennedy’s successor would veer sharply to the right.
The 5th U.S. Circuit Court of Appeals illustrates both phenomena. Trump has appointed five judges to the court, transforming a conservative bench into a lion’s den of ultra-reactionary ideology. In July, weeks after Kennedy announced his retirement, Judge James Ho—a Trump nominee to the 5th Circuit—wrote an opinion condemning abortion as a “moral tragedy.” He then accused a district court judge of anti-Christian bias because that judge had ordered the Texas Conference of Catholic Bishops to respond to a subpoena on a Sunday. (“Father’s Day, no less.”) Ho alleged that this judge, a moderate Reagan appointee, was attempting “to retaliate against people of faith.”
A month later, two judges on the 11th U.S. Circuit Court of Appeals declared war on Roe v. Wade. In an intemperate opinion, Chief Judge Ed Carnes described Roe as an “aberration” with no basis in the Constitution. He then begrudgingly struck down an Alabama law that, in his words, compelled a doctor “to kill the unborn child before ripping apart its body during the extraction.” Carnes admitted that the measure infringed on Roe because it would require dangerous injections that put women at risk of “bleeding, sepsis, bowel or bladder injury, and cardiac arrest.” But in the process, he signaled his disgust for Roe—even refusing to call abortion providers “doctors” because “the object of their action is not healing but killing.” In a separate opinion, Judge Joel Fredrick Dubina went further, directly urging the Supreme Court to overturn Roe. Carnes and Dubina, both George H.W. Bush appointees, appear extremely eager to help Trump’s nominees topple the constitutional right to abortion access once and for all.
As Brett Kavanaugh moved through the Senate confirmation process in September, that goal inched closer to reality. On Sept. 10, the 8th U.S. Circuit Court of Appeals upheld a Missouri law that is virtually identical to the Texas measure that the Supreme Court struck down in 2016’s Whole Woman’s Health v. Hellerstedt. Like Texas, Missouri forced abortion clinics to meet complex, medically unnecessary architectural standards and directed abortion providers to obtain surgical privileges at a nearby hospital. The Supreme Court invalidated both Texas requirements, holding that they provided no medical benefits. Yet the 8th Circuit upheld both Missouri rules—openly defying the Supreme Court in anticipation of Kavanaugh’s inevitable assault on abortion rights.
Then, on Sept. 26, the 5th Circuit played a similar game, upholding a Louisiana law that imposed draconian standards on abortion clinics. The court reasoned that, because the law would close only one of the state’s three clinics, it passed constitutional muster. Again, this sophistry directly contradicts the Supreme Court’s decision in Whole Woman’s Health. The 5th Circuit is simply banking on Kavanaugh refusing to adhere to that recent ruling.
To see the remainder of this article, click read more.