During his one term in office, President Donald Trump’s most long lasting accomplishment may be one of his least famous: packing the federal courts with conservative judges. In just four years, Trump and the Republican controlled Senate confirmed more than 200 federal judges, more than a quarter of all active members of the judiciary, including a third of the Supreme Court, which now stands at a solid 6-3 conservative majority. Thanks to Trump, more than half of the federal judiciary is now made up of Republican appointees, while at least three federal circuit courts that were previously majority Democratic have now flipped to Republican control.
Concerns about a court system stacked with conservatives have haunted liberals for years, and Trump’s breakneck speed at appointing judges led many on the left to hit the panic button. Calls for expanding both the Supreme Court and lower level courts have gained serious traction among both progressive activists and a handful of Democratic politicians, who see extraordinary measures as the only response to extraordinary times.
David Cole, legal director of the ACLU, has a different take.
“Sometimes, people think, ‘oh, it’s a conservative court, nothing can be done, you can’t possibly win.’ But I think the record suggests quite the opposite,” Cole told Blue Tent in a recent phone interview. “And I think what history demonstrates is that the [Supreme] court, over time, no matter who’s appointed to the court, the court doesn’t depart dramatically from where the people are on fundamental constitutional issues.”
Cole is quick to point out that the Supreme Court in particular has been majority Republican appointees since the 1970s, meaning that the ACLU and other progressive litigators have been arguing—and sometimes winning —major cases in front of a conservative court for close to 50 years.
Aaron Belkin, president of the court expansion advocacy group Take Back the court, says that the numbers disagree.
“I think that the view that the court is going to align itself with public opinion is inconsistent with the data about how dangerous this court is, and how dangerous the court has been, and how dangerous the court will be,” Belkin told Blue Tent.
Citing analysis by Five Thirty Eight, Belkin notes that even Justice Anthony Kennedy—often considered the swing vote and a moderating influence on the court—was far more likely to favor his colleagues on the conservative wing. Belkin also drew arguments from an American Constitution Society report authored by Democratic Senator Sheldon Whitehouse, which analyzed cases from 2005-2018, in which the court’s five conservatives wrote the majority opinion without a single liberal joining. Seventy-three of those 78 decisions dealt with “conservative or corporate donor interests” (e.g., “restricting civil rights” or “protecting corporations from liability”) and in every single one of those 73 cases, the conservative wing ruled in favor of those interests.
The report goes on to argue that in 55% of those cases, the court’s decision disregarded one or more conservative legal principles. This, Belkin claims, is evidence that the court’s conservatives are more concerned with politics than jurisprudence.
“Considering that the 5-4 [majority conservative] court under Justice Kennedy was not a moderate court, contrary to conventional wisdom, the [majority conservative] 6-3 court with Barrett, Gorsuch and Kavanaugh should send shivers up the spine of any American who cares about civil rights, basic decency, fairness, a healthy middle class, climate, guns or immigration,” Belkin said.
Belkin’s solution to this specter of right-wing jurisprudence is to expand both the Supreme Court and lower federal courts to match the Trump administration’s work to stack the deck. The ACLU does not have a formal position on court expansion, though Cole—who is also a longtime legal scholar, law professor and contributor to publications like the New York Review of Books—says he is personally opposed to adding justices for fear of starting a tit-for-tat politicization of the court. (Though he respectfully disagrees with Cole on these issues, Belkin greatly admires his work and considers him “an American hero.”)
Cole concedes that the courts have become increasingly more conservative in recent years. But even under Roberts, Cole argues, the court has a mixed record, indicating a tendency to follow popular conceptions of constitutional issues. Cole cites the court’s recent rulings extending employment protections to LGBTQ people, striking down Trump’s attempt to take away protections for dreamers and upholding lower court rulings striking down abortion restrictions.
“For 50 years, we’ve had a conservative majority court,” Cole said. “Is it more conservative today? Yes. Does it mean we can’t prevail on constitutional issues? No.”
For Belkin, the existence of occasional progressive wins does little to settle his concerns that the court’s conservatives are “politicians in robes.”
“Even Justice Ginsburg voted in a conservative direction a small percentage of the time, and even Justice Scalia voted in a progressive direction a small percentage of the time,” Belkin said, going on to credit Cole and others with vital liberal victories against improbable odds.
“But the point is that on average, the court has been a very dangerous court and will remain a very dangerous court.”
