Over the last five days, three different federal judges issued sweeping decisions that range from incoherent to repulsive. All three judges were nominated by Donald Trump. All three sit in Texas and regularly reward conservative plaintiffs who shop cases to their courtroom. Taken together, their rulings illustrate the lawless (and sometimes lethal) depravity that is infecting lower courts stacked with Trump judges. One ruling lets alleged domestic abusers possess firearms. Another allows health care providers to discriminate against LGBTQ patients. A third halts Joe Biden’s student debt relief program. A hard-right Trump-stacked federal appeals court issued a separate nationwide injunction against the program on Monday—yet provided literally no analysis of its legality.
This spree of partisan rulings vividly demonstrates the importance of the president’s judicial agenda. With Republicans poised to seize control of the House of Representatives (thanks to the Supreme Court), Democrats have missed a narrow window for meaningful court reform. At this point, they can only dilute the influence of Trump judges by filling every vacancy with progressive counterweights. And the party’s ability to pick up the pace of judicial confirmations hinges on two things: the outcome of the Georgia runoff, plus Democrats’ willingness to embrace the kind of hardball tactics that Republicans used to gain their current dominance in the courts. This week’s horrible rulings demonstrate the urgency of the task ahead for Senate Democrats.
Start with the most shocking decision: Judge David Count’s ruling on Thursday that the Second Amendment protects an individual’s right to possess a handgun when under a restraining order due to allegations of domestic violence. All 50 states and the federal government limit alleged abusers’ access to firearms, and the grim statistics explain why. An abuser’s access to guns makes it five times more likely that a woman will be killed. More than half of intimate partner homicides are committed with guns. An American woman is shot and killed by an intimate partner every 14 hours. Domestic abusers are also disproportionately likely to commit mass shootings: Nearly a third of mass shooters have a history of domestic violence, while more than half of mass shootings with four or more victims are committed by domestic abusers.
In his Bruen decision, however, Justice Clarence Thomas barred courts from considering the positive effects of gun restrictions when assessing their constitutionality. Instead, he directed them to ask a single question: whether the government can prove such limits are rooted in the nation’s “historical tradition” by identifying a sufficient number of “analogous” regulations when the Second Amendment was ratified in 1791. Because history can never provide a single “correct” answer to such complex questions, Bruen lets lower courts cherrypick evidence that supports their preferred outcome.
Counts’ decision is a case in point. There is ample evidence that, in 1791, the government could disarm people it deemed “dangerous” because of violent conduct. Yet Counts swept these facts aside because the Justice Department could not identify 1791-era laws that explicitly disarmed domestic abusers. Why? Because domestic violence was not deemed a criminal offense for most of U.S. history. Even Counts himself unironically acknowledges this odious history. Lawmakers believed “the government should not interfere in familial affairs,” Counts wrote, unless domestic violence was truly “serious” (that is, murderous). Counts approvingly cited one court that, in 1874, said judges should “draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.” At that time, Counts wrote, a judge was “more likely to confiscate a wife beater’s liquor than his guns.”
It is no great mystery why domestic violence was widely legal before the modern era: Women were not allowed to vote or serve in office and were often treated as the property of their husbands. Bruen, as interpreted by a Trump-installed far-right judge, lets these long-abandoned standards decide which gun restrictions we are allowed to pass today.
Turn now to another historically marginalized group: LGBTQ Americans. These individuals scored a victory in the Supreme Court’s 2020 Bostock decision, which found that the Civil Rights Act protects them from workplace discrimination. Justice Neil Gorsuch’s majority opinion was straightforward: The Civil Rights Act bars discrimination “because of sex.” An employer cannot discriminate against an LGBTQ person without taking their sex into account. Thus, anti-LGBTQ discrimination is a form of sex discrimination.
There are many other statutes that bar sex discrimination, and the Biden administration has declared that many of these measures protect LGBTQ people under Bostock. Yet Trump Judge Matthew J. Kacsmaryk keeps halting Biden’s implementation of the Supreme Court’s decision. The judge’s latest salvo came on Friday, when he ruled that neither the Affordable Care Act nor Title IX protect LGBTQ people. This conclusion is a head-scratcher because the ACA (which bars health care discrimination) and Title IX (which bars discrimination in education) forbid sex discrimination, just as the Civil Rights Act does. So what’s the difference?
The answer is almost too absurd to believe: The Civil Rights Act outlaws discrimination “because of sex,” while the ACA and Title IX outlaw discrimination “on the basis of sex.” These two phrases, Kacsmaryk reasoned, have fundamentally different meanings. “Because of sex” protects LGBTQ people. “On the basis of sex” does not.
In fairness, Kacsmaryk barely tried to prop up this feeble differentiation. His real conclusion is that Bostock was wrong and should not be extended any further. The judge approvingly cited the dissent in Bostock, complaining that Gorsuch strayed from the text of the law. He asserted that Congress could not have intended to safeguard LGBTQ people when writing these statutes, an argument that the Supreme Court considered and rejected in Bostock.
Indeed, Gorsuch already rebutted every piece of Kacsmaryk’s reasoning. What we have here is open defiance of Supreme Court precedent. And lest any other judge reach a different conclusion, Kacsmaryk applied his decision to every health care provider in the country—including those who support LGBTQ patients—transforming a case brought by two Texas doctors into a class action representing the entire health care industry.
Finally, turn to Biden’s student debt relief plan, which is now sinking into the quicksand of a Republican judiciary. The basic problem for foes of the program is that nobody should have standing to challenge it in federal court. Standing requires plaintiffs to prove that they suffered a “concrete, particularized” injury that’s inflicted by the party they’re suing and will be “redressed” by a ruling in their favor. A number of Republicans have already tried and failed to establish standing to contest student debt relief.
Myra Brown and Alexander Taylor joined the list of challengers when they accused the Biden administration of failing to let them comment on the program before enacting it. Brown is ineligible for relief because her student loans are private, while Taylor is eligible for only $10,000 (rather than $20,000) because he did not receive Pell Grants. There are three reasons why neither can possibly have standing. First, their injury is not, by law, an injury: A federal statute lets the federal government forego public comment when enacting student loan forgiveness. Second, setting that fact aside, courts have consistently held that an individual’s anger over the scope of a government benefit is not “particularized injury” that confers standing. Third, their injury would not be redressed by a court ruling in their favor. Quite the opposite: They are asking for the eradication of the whole program, which would still leave Brown with zero dollars in relief, and deprive Taylor of $10,000 in debt cancelation.
None of this stopped Trump Judge Mark Pittman from invalidating the plan on Friday, preventing a single person from getting relief. His decision is self-contradictory: Pittman found that the plaintiffs had standing because they could not provide public comments on student debt relief—then ruled that the administration was not required to allow public comments. (Lawyers call this “bootstrapping,” and rarely is it more transparently bogus.) Later, in a swipe at both Biden and Barack Obama, Pittman wrote: “In this country, we are not ruled by an all-powerful executive with a pen and a phone.” He invoked the major questions doctrine to substitute the plain text of a law authorizing loan forgiveness with his own subjective judgment about what Congress meant to do.
On Monday, the U.S. Court of Appeals for the 8th Circuit issued a second block on student loan relief: Two Trump judges and a George W. Bush appointee halted the program in a brief decision that appears to have been held until after the election. Incredibly, the court’s five pages of reasoning includes no analysis of the plan’s legality. It merely reasoned that, because loan relief is a really big deal, it must be put on hold indefinitely. The court did not offer a single sentence assessing whether Biden’s plan is lawful before issuing a nationwide injunction against it.
Democrats have one tool at their disposal to push back against this madness: Confirm as many progressive judges as possible. Biden’s record is already impressive, but it is harder to confirm judges in a 50-50 Senate. The Senate Judiciary Committee is evenly divided and occasionally deadlocks, forcing Democrats to waste time on floor votes to discharge a nominee from committee. If Sen. Raphael Warnock wins his runoff in December, Democrats will hold an outright majority on the committee, avoiding future deadlocks. They will also have a spare vote on the Senate floor in case a moderate Democrat sours on a nominee.
Whether Warnock wins or not, Democrats are heading to a showdown over blue slips, which let senators veto judicial nominees in their home states. Republicans eliminated blue slips for appeals court nominees, but Senate Judiciary Committee Chair Dick Durbin has preserved them for district court nominees. That has allowed Republicans to preserve many vacancies in red-state district courts—ensuring that a future GOP president can fill them with more people like Counts, Kacsmaryk, and Pittman.
If Democratic senators are alarmed by Trump judges’ lawlessness, they must abolish blue slips for good and let Biden fill these crucial seats. The other option is continued domination of red-state district courts by bomb-throwing radicals. The last few years have taught us just how much havoc awful judges can wreak on the entire country. With court reform slipping away, ending blue slips and supercharging the Senate’s confirmation process is Democrats’ last, best hope for rebalancing an out-of-control judiciary.