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.
Conservative judges were equally adamant about extending the Second Amendment in the second half of 2018, following Kennedy’s retirement. Although the Supreme Court created an individual right to bear arms in 2008’s D.C. v. Heller, Kennedy pushed for moderating language clarifying that “the right secured by the Second Amendment is not unlimited.” With the swing justice gone, Trump’s nominees wasted no time insisting that, in fact, even long-standing limitations on firearms are constitutionally suspect.
On July 20, four of Trump’s nominees to the 5th Circuit announced their belief that a federal ban on interstate handgun sales violates the Second Amendment. They were in a slim minority—but now a fifth Trump nominee has joined the 5th Circuit, potentially making their view one that’s held by the majority. In a rambling opinion, Ho criticized the court for treating the right to bear arms as a “second-class right,” fuming that the Second Amendment “must not give way to hoplophobia.” (Hoplophobia is an “irrational aversion to weapons.”)
Four days later, two conservative judges on the 9th U.S. Circuit Court of Appeals struck down a Hawaii law that bans most citizens from carrying loaded handguns in public. Then, in December, the 3rd U.S. Circuit Court of Appeals upheld New Jersey’s ban on large-capacity magazines—over the dissent of Judge Stephanos Bibas, a Trump nominee. Bibas wrote that, to justify the law, New Jersey must provide “concrete evidence that magazine restrictions have saved or will save potential victims.” Because the state had not provided empirical evidence proving a link between the high-capacity magazine ban and a reduction in mass shootings, Bibas believed the law must be placed on hold.
The majority pointed out that New Jersey had put forth evidence that high-capacity magazines can heighten the death toll during mass shootings and cited “examples of intervention and escape permitted” when shooters must pause more frequently to reload. But Bibas demanded more: not just evidence that more people die when mass shooters use high-capacity magazines but a “concrete causal link … between these magazines and crime.” That is an extremely heavy burden with no basis in Heller. As the majority countered:
To take the dissent’s suggestion concerning the need for empirical studies to its logical conclusion, the State would have to wait for studies analyzing a statistically significant number of active and mass shooting incidents before taking action to protect the public.
And if New Jersey has not yet experienced a statistically significant number of mass shootings, it will have to wait for more to occur before it can justify its ban on large-capacity magazines.
This time around, Bibas was in the minority. But Trump is poised to “flip” the 3rd Circuit, creating a majority of Republican appointees. Once that happens, conservative judges could adopt Bibas’ theory as the law of the circuit. At that point, a slew of gun restrictions in New Jersey, Pennsylvania, and Delaware would be imperiled, as states scrambled to meet Bibas’ stringent standard of causation.
Bibas, Ho, and others are taking their cues from Justices Clarence Thomas and Neil Gorsuch. In 2017, the two justices wrote that laws banning public carry are unconstitutional and bemoaned the “distressing trend” of “the treatment of the Second Amendment as a disfavored right.” Their opinion encouraged lower court judges to go maximalist on gun rights in the hopes that, in the future, a more aggressive SCOTUS might wipe out gun safety laws. Now that Kavanaugh, who believes assault weapons bans are unconstitutional, has joined the court, that future is now.
There is no doubt that the judiciary is about to lurch to the right on guns and abortion, as well as a slew of other issues. The question is how far, and how fast, Chief Justice John Roberts is willing to go. An institutionalist with a knack for compromise, Roberts is keen to preserve the court’s standing and forestall the appearance of pro-Trump bias. He likely shares the aims of Trump’s nominees but may feel obliged to balance them with his stewardship of the federal judiciary. In 2019, we’ll learn what Roberts values more: executing the Federalist Society’s agenda or saving the Supreme Court from a crisis of legitimacy.
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