King George III chided revolutionaries in the hit Hamilton show that “oceans rise, empires fall.” But little did he know while monarchies are not forever, Article III judges would be. No matter if you consider the economy, race relations, crime, reproductive rights, climate change, or even the coronavirus as your “single voting issue” come the U.S. election this November, there is no corner of public policy untouched by the long shadow of the federal courts.
When you cast your ballot this year, you are not just voting for who is in power for the next two, four, or even six years. Your ballot decides who is in power for the next forty years. Judges are getting appointed at an exponentially younger and faster rate. Some of these judges could be on the bench until 2080 without beating records by much. Meaning, no matter who is elected in 2020, 2024, or 2044 there could be a few hundred federal judges laying in wait with a reality check on your party or candidate’s policy goals no matter how large or small.
Whether Americans like this reality they should and need to accept the most important issue on the ballot are the courts. In particular, young people have a moral obligation to vote for this reason. Though close to a record 150 million Americans are projected to vote this election the youth vote still is disproportionately small. Regardless of your political party in this 11th hour appeal I ask you to change your mind. Even if you voted for another candidate in the primary, think your vote is futile, or are disenchanted with the status quo there is a voting issue that trumps them all. The courts. This will take some convincing.
Asked in June what the most important problems plaguing the country were, Americans responded assuredly: poor leadership 21%, the coronavirus 20%, the economy 19%, race relations 19%, and ten issues later the judiciary at a measly 2%. The future of the judicial branch fared even worse in January. When Americans were polled on the most influential factors on their ballot judges didn’t even make it to the sweet 16 with healthcare, national security, guns, education, and the economy rounding out the top respectively. Why should Americans of all parties and persuasions care about the judiciary above all else? Federal judges can unilaterally thwart or enable all other voting issues listed above.
Part I – Back to the Basics
Federal judges did not always have this grand and virtually unreviewable power over your policy wishlist or even over the other branches of government. Only 15 years after the signing of the United States Constitution did some courts gain the power to strike down certain laws and government actions. Fittingly, in a legal struggle over the appointment of federal judges, Chief Justice John Marshall birthed what we now call “judicial review.”
A court under “judicial review” could overrule a government action because it violated the Constitution itself. This result came from the infamous case, Marbury v Madison, which still has modern detractors hundreds of years later. Don’t hold your breath. Marbury isn’t going anywhere and for good reason. Marbury opened the doors to concentrated long-term political power not fully dependent on winning fickle voters or courting your insufferable colleagues in smoke filled rooms. There are impassioned, ambiguous, or legal based cases and controversies that politicians should not call on to answer due to conflicts of interest or lack of technical expertise.
Courts should not just be deciding if private citizens have committed a crime or are owed their just deserts. It was a Copernican legal revolution to suggest the government itself could violate the very laws it passes and that courts would act as a stopgap to such violations. The consequences of a world without this stopgap could otherwise have been grave for equal justice under law. The underlying debate in Marbury has thus become a cyclical question that we return to 2020 with new urgency. To what extent should the judicial branch check the other branches of government? And, what will we do to protect that check at all costs?
Part II – Crossing the Rubicon
In the two hundred or so years since Marbury, oceans indeed began rising, many European empires fell, and federal judges have enabled, refined, or blocked all together thousands of state, executive, and legislative actions. Presidents Lincoln, FDR, and Nixon to name a few could speak to the reality of governing with a less than eager court companion. More strikingly, whilst politicians are not forever, judges can keep this respective power in perpetuity and with little impunity.
Unless impeached, federal judges are virtually always on the bench until they roll into a disproportionately late retirement or increasingly… their graves. Even the most storied law professors could probably only count on one hand judges they knew that were removed by impeachment alone. Federal judges are for life whether we like it or not [a good question for another time]. In their extended lifetimes on the bench judges make mistakes. They are not legal robots. When judges “get it wrong” the only real check is an increasingly small group of appeals courts that can review their actions. Some astute political theorists still rightfully believe that social movements and a wellspring reaction could return us to political equilibrium but that is not guaranteed. Even then, review is not guaranteed and the highest court in the land has taken on fewer and fewer cases for decades.
Even with a small percentage of cases up for review a majority of sympathetic appointees in an appellate circuit court or the Supreme Court can ensure policies or principles remain in place decades or centuries after a politician has left office. This has meant the President, who nominates judges, and the Senate, who “advises” and confirms them, have increasingly fought to win the soul of the judicial branch. As such, Presidents and Congress alike have tried to form the courts in their own image when they can and at any cost.
Most Americans are surprised to know given the rancor around the Supreme Court that their ideological makeup for the last few decades has been oddly stable in some aspects. There is a good argument to be made there has been no “liberal” majority appointed court since 1969. Meaning, there has been no “left-leaning” court since the end of the legendary Warren Court; A court that held a few years later in Roe v Wade “that the right of personal privacy includes the [right to an] abortion.” Strike number one in the books of most conservative and Republican party members. In the wake of the Warren court we have seen virtually fifty years of a majority of appointees from Republican Presidents. This has not always meant each Justice voted in lockstep even if most did.
Whilst historically many appointees have remained somewhat loyal to their respective appointer there is a good reason the phrase “No more Souters” entered the political Zeitgeist at the twilight of the 20th Century. Justice David Souter, infamously appointed in 1990 by then President George H. Bush, was later labeled a “stealth” disaster amongst Republicans as he began to tilt further “left” in his voting patterns. This was strike two for a party who had also failed to get Robert Bork on the court in what is considered a watershed moment in judicial history.
Other GOP appointees including the late Justice Stevens, Justice Kennedy, and Justice O’Connor who transformed into “swing votes” despite assurances from many that they had passed strict purity tests of their day. Stevens and Souter, both Republican appointees, even later became stalwart members of the “left-bloc”. Leading Bush to allegedly remark privately that Souter was one of the greatest mistakes of his Presidency.
Bush Sr. would not make that same mistake with his next appointee Justice Clarence Thomas. By most objective models Thomas is now considered the most “conservative” justice on the court and has been for some time. In a post-Thomas world the court has seemingly voted in similar patterns but not enough to satiate all. These debates rage on even today. After a mixed bag year of purported “betrayals” and victories there is an increasing call for all parties to produce the platonic ideal Supreme Court candidate.
Even with a Chief who built his nomination around the image of a Justice as umpire, this term seemed the third and final strike for the GOP. In the wake of Justice Kennedy’s retirement a few years ago all were expecting the “Great Conserative Awakening” of an already “conservative” court. A handful of surprising votes from the Chief Justice, Justice Gorsuch, and Justice Kavanaugh have produced a gamut of court watching reactions. That court by all metrics has indeed continued to move right but not at the pace the GOP had thought they secured. Long festering cases concerning gun regulations, abortion, religious liberty, and unions remain unresolved. There are even internal signals that the current composition of the court may not resolve these questions any time soon which brings fleeting relief to exhausted Democrats and consternation to impatient Republicans. The Roberts Court has finally crossed the Rubicon for both parties. The fate of the City on the Hill is at stake and voters clamor to secure its destiny in this short electoral window.
Part III – When in Rome, Do As the Romans Do
Oceans rose 3.6 mm last year and the Supreme Court Justices also still love to remind the public whenever they can that close to a majority of all cases decided are unanimous. This year was no different. More than a third of all opinions were decided with no dissenter in sight. Many of these unanimous cases on the minutiae of bankruptcy, intellectual property, or civil procedure are of course consequential. Often in ways invisible to the public their consequences may take time to observe.
This trend of unanimity has held true for much of the Robert Court’s tenure and has begun to define his purported modus operandi: The Court is an institution above the partisan fray. Institutionalism above all. Yet, in the private conference room where it happens nine justices did decide a quarter of cases or so on razor thin margins this term. Some would argue those “5-4” cases are the real meat and potatoes.
If you want to achieve the progressive policies of a future President Elizabeth Warren or the conservative policies of President Thom Tillis in 2024 you are probably going to need to win many of those “5-4” cases. Your vote in 2020 will decide who those 9 folks are not just in 2020 but probably until 2040 when President Lin Manuel-Miranda is elected to a second term. Of the current nine justices, the late Ruth Bader Ginsburg died at 87 and Justice Stephen Breyer is 81. For those playing at home this is indeed abnormal.
Tracking retirement ages over time the average age of retirement for justices is around 74. More accurately examining the last 11 justices Empirical SCOTUS finds that number closer to 80. Looking at the data alone it is at least somewhat likely Breyer may not able to complete years. Ginsburg courageously battled a reemerging cancer for over a decade and died a mere two months before the election. Why does that matter?
The current and traditional ideological makeup of the courts is broken down into two groups. There are a bunch of good arguments on how reductive “liberal” and “conservative” labels are for judges but for the sake of practicality we are going to stick with those terms. There are five “conservative” justices which include Chief Justice Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and the newly appointed Barrett. There were four “liberals” which included Justice Ginsburg, Breyer, Sotomayor, and Kagan. If Trump wins both the Presidency and the Senate he could very easily create a 7-2 conservative super majority. If Democrats win the Presidency and Senate they may be able to preserve the status quo for the time being. Even the existing majority is built to last.
If Ginsburg and Breyer were no longer on the bench the next “oldest” would be Justice Clarence Thomas at 72 and Justice Samuel Alito at 70 respectively. Taking into account modern retirement ages, and barring any unforeseen circumstances like with the late Justice Scalia, it’s not unlikely that these current six “conserative” justices will still be in place for ten to fifteen more years regardless of the outcome of the election. Why should placated Republicans or defeated Democrats still care? The long game is what matters. The same long game that has been transforming lower courts for years.
Part IV – The Room Where It Happens
The 9th Circuit Court of Appeals is the largest appellate court in the country. The network of 29 or so judges straddles the entirety of Pacific Ocean Coast and extends into the deserts of the Southwest and even the Rocky Mountains. If you were to appeal a federal case in this great western judicial empire last year you would have been one in a sea of fifty thousand others. Just as the 5th and 11th Circuit have long produced more traditionally conservative outcomes the 9th has long been identified as the liberal foil. That is beginning to change.
For the first time in decades the 9th Circuit has “flipped.” In a concerted campaign by both the Trump Presidency and a GOP lead Senate have appointed close to 200 judges at a breakneck speed. In fact, except for Jimmy Carter, no other President has appointed federal judges at the rate we have seen. Trump has appointed a record 50 or so circuit court judges. By comparison, at the same point in their first terms, President Obama had appointed just 19 and President Bush 26. By the end of his term Trump could very well “flip” four or more circuits across the country.
The rapid disparity in numbers can be attributed to a long battle in the Obama Presidency over obstructed nominees and the removal of the Senate’s 60 vote filibuster. As many warned then, the chickens came home to roost though it seems likely the lower court filibuster wouldn’t have survived the Trump administration when the Supreme Court filibuster fell to a similar fate. Voters should care about this shifting judicial system because these are the very laboratories of the judiciary where they are most frequently affected.
While only 65 or so cases are making it up to the Supreme Court every year hundreds of thousands are being decided on the district level and tens of thousands on the appellate level. The Supreme Court cannot and will not often even consider a case unless there is a “split” or disagreement amongst lower courts. In rarer circumstances they may review the case due to the stakes or urgency of the matter at hand. Who we elect now will indirectly decide the outcomes of hundreds of thousands of cases that affect our daily lives and can do so quickly. The group of people who write this judicial story is getting younger and less diverse.
The median age of an appeals judge hit an all time low of around 48 under Trump. For his 200th appointment Judge Kyle Duncan turned 37 this year. As NPR reports further, “nearly 7 in 10 of the Trump judges are white men. Just 28 of the 200 are people of color.” This pool of increasingly less diverse and younger judges have immense power. Take the “national injunction.”
A single district court judge or a panel of circuit judges under urgent and extreme circumstances may have good reason to immediately stop a government action they believe could be legitimately challenged in full later and that will do irreversible harm now if unstopped. Often depending on who is in power both sides of the aisle have long argued against the asymmetric power of national injunctions. From immigration to healthcare national injunctions have been equal opportunity destroyers. Even if there is a meaningful difference in frequency across the courts. Yet, this is one example of the enormous power of one judge or a panel of judges.
Imagine if President Harris or President Rubio were to come into office with their First Hundred Days list. As a pragmatic advisor I would either be concerned or heartened by the asterisk on the top of that list: First Hundred Days*Of what the courts let me do. The individual mandate, originally developed in the crucible of conservative think tanks, barely survived it’s first few years in seemingly endless litigation. Imagine if Congress were to pass the 2019 Medicare-For-All act? Who is to tell what the courts will do. Just look at this year alone.
Courts this year alone have decided the scope of coronavirus lock downs, whether LGBTQ persons are protected under federal employment law, to even when cast ballots actually count. Do not underestimate who is in the Senate Chamber or the Oval Office. But the room where it happens is not one you may think.
Conclusion
As a voter, it’s not likely the federal court system was on the top list of your concerns. With a historic recession and an unprecedented pandemic many of us are concerned about the health and welfare of those we love the most. When we go into the ballot box on November 3rd we may be acting on those hopes or fears. If you are young or old elections have consequences we still cannot comprehend. You must vote in 2020 and still have the time to do so. All we ask is that you consider the prior question: Who controls the courts? Whatever conservative, liberal, libertaian, or progressive goals you may have, those have to co-exist with the courts. Issues will rise, candidates will fall, but courts are forever.