Welcome to the Trump Bench, a series where Slate analyzes a Trump judge’s recent work. At an unusually rapid clip, Donald Trump has so far successfully appointed two Supreme Court justices, 51 appeals court judges, and 138 district court judges during his presidency. Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified. The judges will likely be Trump’s most enduring impact on our nation, which is why we are choosing to spotlight their work.
The fifth installment is about Justin Walker, who has been nominated to the D.C. Circuit after just a few months as a federal district judge.
The Judge: Justin R. Walker of the U.S. District Court for the Western District of Kentucky. The Senate confirmed Walker to the court on Oct. 25, 2019, despite the American Bar Association’s determination that he was “Not Qualified.” On April 3, Donald Trump nominated him to the U.S. Court of Appeals for the District of Columbia Circuit. Like many of Trump’s judicial nominees, Walker is a member of the Federalist Society.
The Decision: On Saturday, Walker issued the only notable decision of his brief career, blocking a Louisville, Kentucky, social distancing order that, he claimed, banned drive-in church services on Easter. There were two problems with his ruling. First, it was filled with inappropriate, inflammatory, and highly partisan rhetoric. Second, the entire opinion rested on a factual error, because Louisville had not actually banned drive-in church services.
The trouble started on Thursday, when, at his daily COVID-19 briefing, Louisville Mayor Greg Fischer said he would not permit churches “to gather either in person or in any kind of drive-through capacity.” Fischer feared these services would lead to coronavirus outbreaks, since religious congregations have contributed heavily to the spread of the virus. This statement alarmed On Fire Christian Center, a Louisville church that planned to hold a drive-in Easter service.
Had Fischer attempted to shut down drive-in services, he probably would’ve violated Kentucky’s Religious Freedom Restoration Act, which requires less restrictive limits on the exercise of religion. But the mayor intended no such thing. Rather, Fischer’s spokesman clarified that police would merely be “discouraging organizers from proceeding,” noting: “This is not a law enforcement matter, it’s a community matter.” And on Friday, Fischer reiterated this point, stating that the police would merely be “handing out information detailing the health risks involved” to worshippers who congregate, and taking down license plate numbers to expedite contact tracing if any worshippers get infected.
Nonetheless, on Friday, On Fire filed a lawsuit in Walker’s court, demanding an injunction that would protect their ability to hold drive-in services on Easter. Walker granted that request on Saturday—without even hearing Fischer’s response—in a decision that began with this scathing rebuke:
On Holy Thursday, an American mayor criminalized the communal celebration of Easter. That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.
The Mayor’s decision is stunning.
And it is, “beyond all reason,” unconstitutional.
Walker then embarked upon a brief history of religious liberty, beginning with the Bible. “According to St. Paul, the first pilgrim was Abel,” he wrote, who sought “God’s promised kingdom.” He then moved onto the Pilgrims, “heirs to a long line of persecuted Christians, including some punished with prison or worse for the crime of celebrating Easter.” And he complained that “just over three decades ago,” Democratic Sen. Robert Byrd, an “ex-Klansman,” was “the Majority Leader of the United States Senate.”
Following these gratuitous passages, Walker found that the mayor’s ostensible order violated both the free exercise clause of the First Amendment and Kentucky’s Religious Freedom Restoration Act. (Under the doctrine of constitutional avoidance, Walker should not have addressed the First Amendment question after finding that Kentucky law resolved the case.) He concluded:
The Christians of On Fire, however, owe no one an explanation for why they will gather together this Easter Sunday to celebrate what they believe to be a miracle and a mystery. True, they can attempt to explain it. True, they can try to teach. But to the nonbeliever, the Passion of Jesus—the betrayals, the torture, the state-sponsored murder of God’s only Son, and the empty tomb on the third day—makes no sense at all. And even to the believer, or at least to some of them, it can be incomprehensible as well.
But for the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, “it isn’t a matter of reason; finally, it’s a matter of love.”
There are several puzzling aspects of this peroration. First, it is unusual for a judge to fill his opinion with overtly sectarian language; Walker’s ruling is more of a sermon than a legal opinion. Second, the decision comes very close to endorsing Christianity, with its paeans to the Passion and approving citations to Christian theology. Third, Walker makes a strange distinction between “believers” and “nonbelievers,” implying that the latter group simply cannot understand the importance of religious liberty—a jab not just at atheists but at every non-Christian.
But the bigger problem with Walker’s decision is that it never should’ve been issued. He granted the restraining order ex parte, meaning he did not give Fischer an opportunity to respond to On Fire’s charges. After he issued his order, Fischer stated: “I regret that the judge did not allow us to present evidence that would have demonstrated there has been no legal enforcement mechanism communicated. We attempted twice to contact the court.” As South Texas College of Law professor Josh Blackman pointed out, Walker could’ve at least held “a 15 minute telephonic status conference” to learn the real facts. Or he could’ve given the mayor’s office an opportunity to file a brief. But instead of hearing from both sides to gain a full understanding of the situation, Walker wrote a 22-page decision with 86 footnotes to address an alleged constitutional violation that did not actually exist.
The Precedent: It seems unlikely that Walker’s decision will serve as much of a precedent for other courts given that even legal scholars sympathetic to his position, like Blackman, condemned it as performative overreach. The real precedent here is stylistic. Trump appointees have been falling over themselves to write jeremiads that will keep them in good favor with Trump, Mitch McConnell, and Leonard Leo, former head of the Federalist Society, who advises the president on judicial nominees. It worked for Brett Kavanaugh, who wrote an anti-abortion polemic while serving on the D.C. Circuit that may have clinched his nomination to the Supreme Court. Other Trump judges have also auditioned for a promotion by writing provocative conservative opinions. The president has already nominated Walker to the D.C. Circuit—after he spent less than six months on the bench. He may be trying to clinch confirmation by securing the votes of Senate Republicans, particularly those already partial to a theocracy.
The Record: Aside from Saturday’s decision, Walker has issued no notable rulings in his few months on the bench. His primary qualification for his position appears to be that he made 162 media appearances to praise and defend Kavanaugh between June and October 2018.
The Vote: The Senate confirmed Walker to the district court by a vote of 50–41, with every Republican present voting in favor and every Democrat present voting in opposition. Expect his confirmation vote to the D.C. Circuit to follow a similar pattern. This time around, though, senators will have an opportunity to question him about his work on the bench, including his decision to issue an ex parte order against a government action that did not exist.
For more about the law and the judges who interpret it, listen to Amicus.