Over the last few years, the lower federal courts have rendered increasingly extreme decisions under the influence of Donald Trump’s 234 judges. Thursday brought one of the most dramatic examples of this trend so far: Two federal courts issued radical decisions blowing up decades of precedent to reach results that are not just conservative but dangerous and absurd. First, the 5th U.S. Circuit Court of Appeals held that judges can block a private company’s vaccine mandate on the grounds of religious discrimination—a decision that even one hard-right judge condemned as an “orgy of jurisprudential violence.” A few hours later, U.S. District Judge Lee Rudofsky issued a stunning decision barring anyone but the U.S. attorney general from suing under the Voting Rights Act, jeopardizing voters’ ability to protect their own rights and undoing decades of precedent. Taken together, these decisions illustrate both the radicalism of Donald Trump’s nominees as well as a stark generational divide over the pace and propriety of overtly results-oriented judging.
Start, as usual, with the 5th Circuit. The Trumpiest appeals court in the country, the 5th Circuit regularly shreds all the rules to pursue an ideological agenda. It is stacked with so many Trump judges and Federalist Society myrmidons that its key dividing line shouldn’t be viewed as conservatives vs. liberals but conservatives vs. far-right nihilists.
Thursday’s decision in Sambrano v. United Airlines illustrates this distinction. The case involves several employees of United Airlines, including a pilot and flight attendant, who challenged the company’s COVID-19 vaccine mandate. These plaintiffs allege that the mandate illegally discriminates against their religious beliefs under Title VII of the Civil Rights Act. They requested a preliminary injunction to block the policy while they pursue their claims.
It is clear that these plaintiffs will lose on the merits, because United already gave them a reasonable accommodation (unpaid leave) and demonstrated that suspending the mandate would impose an undue hardship (by facilitating the spread of COVID). But that’s not the biggest flaw in this suit. The main problem is that, as a rule, Title VII does not authorize courts to issue preliminary injunctions. Instead, plaintiffs receive relief after they’ve prevailed, typically in the form of damages (like back pay) and reinstatement.
And yet, in Sambrano, the 5th Circuit reached the opposite conclusion: In a “narrow” set of cases, it declared in a 2–1 decision, courts can grant preliminary injunctions to block an allegedly discriminatory workplace policy. Which cases? Those involving vaccine mandates. The majority—Judges Jennifer Walker Elrod and Andy Oldham—created, out of whole cloth, a new category of discrimination: “ongoing coercion.” These plaintiffs are “forced to choose either to contravene their religious convictions or to lose pay indefinitely,” they wrote. The “unique” harm of vaccine mandates therefore justifies preliminary injunctions to protect religious employees from a “crisis of conscience.” Elrod and Oldham returned the case to the district court with the strong suggestion that it should issue an injunction immediately.
All this was too much for Judge Jerry Smith, a very conservative Ronald Reagan nominee, who responded with one of the angriest dissents of his career. In a 60-page burst of fury, Smith wrote that “nothing, especially not the law, will thwart this majority’s plans.” While flouting “blackletter law, the record, and even the Supreme Court,” Elrod and Oldham’s “orgy of jurisprudential violence … junks facts, text, history, and precedent, resulting in a one-off change in the law that alters the result for these parties.” Smith even suggested that these judges lied, “inventing and distorting facts” to suit their “incoherent reasoning” while ignoring facts that “would get in the way of a good story.”
“If I ever wrote an opinion” so egregious, Smith wrote, “I would hide my head in a bag.”
Worse, the majority chose to “shrink behind an unsigned and unpublished opinion,” which Smith decried as a “clever way of avoiding, or at least trying to avoid, en banc review.” Nonetheless, Smith urged the rest of his colleagues to vacate Elrod and Oldham’s decision. “By today’s ruling, the Good Ship Fifth Circuit is afire,” he announced. “We need all hands on deck.”
The most revealing line in Smith’s dissent provides a peek into the influence that clerks have over their judges. Bemoaning the many ways that Sambrano could be exploited, he wrote: “It’s difficult to imagine what creative lawyers—not to mention federal judges spurred on by zealous law clerks—will do with these new tools.”
Zealous law clerks? With this aside, Smith may be warning us about the impact of today’s conservative clerks on the law. Federalist Society judges tend to hire Federalist Society clerks, and the conservative legal movement’s radicalization machine produces an endless line of young lawyers even more extreme than their predecessors. Over the past half-century, each generation of conservative attorneys, particularly those with judicial ambition, has been more radical than the last. The latest batch of Federalist Society law school graduates has already flooded the 5th Circuit’s clerkships. Smith appears to be unnerved at the fanaticism of these clerks and their impact on their bosses’ work. (Sambrano may be Exhibit A.) When he, of all people, is ringing the alarm, we should all share his distress.
Turn next to Arkansas State Conference NAACP v. Arkansas Board of Apportionment, handed down by Rudofsky, a Trump judge in Arkansas, shortly after Sambrano. The plaintiffs in this case, both civil rights groups, filed a lawsuit alleging that Arkansas has diluted Black residents’ votes through a racial gerrymander. This tactic violates Section 2 of the Voting Rights Act, and Rudofsky agreed that Arkansas’ map is probably illegal. But he refused to strike it down because, he asserted, only the U.S. attorney general may file VRA claims, and he did not join this case.
If Rudofsky were correct, the VRA would be largely unenforceable: The attorney general brings few claims, instead relying on private plaintiffs to vindicate their own rights under the law. Trump’s Justice Department filed zero VRA claims, yet myriad citizens filled the void with lawsuits of their own. Rudofsky would have thrown out every single one of these suits. His theory is a recipe for gutting what remains of the VRA.
What’s most bizarre about Rudofsky’s argument is that both the Supreme Court and the 8th U.S. Circuit Court of Appeals have already rejected it. A majority of the Supreme Court has held that private plaintiffs, not just the attorney general, may sue under the VRA’s Section 2. So has the 8th Circuit. Those rulings, among others, have led hundreds of other courts to hear VRA cases brought by individuals, not the attorney general. And both rulings are binding on Rudofsky. Yet he claimed that they have been undermined by more recent decisions, freeing him from the obligation to follow them.
The Supreme Court has expressly forbidden this kind of overruling from below, reminding judges: “It is this Court’s prerogative alone to overrule one of its precedents.” Rudofsky didn’t care. Instead, he latched on to a concurrence from Justices Neil Gorsuch and Clarence Thomas suggesting that citizens can’t bring VRA suits. It is as if, recognizing the Arkansas plaintiffs would win on the merits, Rudofsky constructed a new barricade just to keep them from crossing the finish line. In the process, he teed up a vehicle for the Supreme Court’s ultraconservatives to formally overturn the precedent he despises and lop off all vestiges of federal voting rights.
Look at Sambrano and Arkansas Board of Apportionment together and you see an emerging trend: Lower-court judges are empowered by the Supreme Court’s reckless assault on progressive precedent. Taking a page from SCOTUS’s book, these judges are rashly overthrowing decades of case law in pursuit of maximally reactionary and partisan outcomes. Old-guard judges like Smith recognize the perils of this approach, the unintended consequences that may flow from motivated reasoning. But the new guard is confident it can simply change the law if its sloppy decisions lead to conservative-favored outcomes. That’s what the Supreme Court keeps doing, after all, and Democrats have largely abandoned the possibility of expanding either SCOTUS or the lower courts. If the justices don’t face any consequences for going rogue, emboldened judges on the lower courts have good reason to doubt that they will, either.