In November 2018, when then-president Donald Trump challenged a federal judge’s impartiality by calling him an “Obama judge,” Supreme Court Chief Justice John Roberts was indignant. He insisted, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
I wanted to believe him. It was right to criticize the actual rulings of Trump-appointed judges, just as you might do so with a judge appointed by any other president, but it was wrong to label them “Trump judges,” as if the appointing president defined their judicial philosophy. True, prior to the Trump presidency, political scientists tried to match the ideology of judges with that of the appointing president, with varying success; at best, research showed that most judges ranged from the moderate right to the moderate left. The Senate confirmation process — with some exceptions — selected judges in proportion to their not taking extreme positions earlier in their judicial careers.
Take Ruth Bader Ginsburg. As a District of Columbia Appeals Court judge, she wrote narrow decisions, hewing closely to precedent. Jill Lepore (writing in The New Yorker) described Ginsburg’s circuit court years as “something like a decontamination chamber, in which Ginsburg was rinsed and scrubbed of the hazard of thirteen years as an advocate for women’s rights.” By 1993 she was sufficiently “depolarized to be appointed to the Supreme Court.” And the “depolarization” was not a ruse. She was the same on the Supreme Court, while the press labeled her a “liberal.”
District court judges were even more constrained, no matter who had appointed them. In the 1990s, the predominant approach was “managerial judging,” a phrase coined by Yale Law Professor Judith Resnik. Lower court judges were supposed to focus on being efficient, encouraging settlements, alternative dispute resolution, not writing opinions unless absolutely necessary, and only then on narrow grounds. (I described it as the pressure to “duck, avoid, and evade.”)
Recent events have proven Roberts (and me) wrong. There are no Obama, Bush, or Clinton judges, (or Reagan and Carter) but there are Trump-era judges. Not all of Trump’s appointees fit the pattern, nor do they behave as Trump appointees in every case, but there are clear patterns.
Trump judges were appointed at a time of dramatic change at the Supreme Court; “doctrinal flux” was the euphemism that Judge Stuart Kyle Duncan labeled it in the talk he intended to make at Stanford Law School (the one interrupted by student protests). What is “doctrinal flux?” It’s a fancy way of saying that to this conservative Supreme Court, all precedents are up for grabs. It is not just well-known constitutional precedents. This court has changed settled procedures (like accepting direct appeals from the district court to the Supreme Court during the Trump administration) and softened the rules on standing (which require parties to have a direct interest in the case outcome). As Slate’s Dahlia Lithwick and Mark Joseph Stern said: “One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law.”
How does this affect the district court? While district court judges don’t have the authority to reconsider precedent, some Trump judges didn’t get the memo. The constitutional ceiling that constrained all judges has been weakened, if not shattered.
Judge Aileen Cannon tried to stop an ongoing criminal investigation of Trump for which she had no constitutional authority. A Trump appointee in Arkansas ruled in February that the Voting Rights Act can’t be enforced by private individuals or groups, despite more than five decades of such litigation. In May, another Trump appointee in Florida canceled scheduled arguments in a challenge to the federal mandate for mask use in transportation, then rushed out a decision striking down the requirement days before it was to expire.
Now comes Judge Matthew Kacsmaryk. He ruled that mifepristone, one of the two drugs used in medical abortions, is unsafe, although it has been used for more than two decades. He granted standing to an organization formed a month before in Amarillo, Texas, where Kacsmaryk is the only federal judge. He tapped into the skepticism of some Supreme Court justices about administrative delegation, even with an agency long recognized for its expertise. And he indulged in old tropes about women’s psychological reactions to abortion because some justices parroted them in an earlier case.
With the weakening of that constitutional ceiling, nothing stops conservative litigants from making totally unprecedented arguments and finding a Trump judge who is happy to indulge them. Kacsmaryk obliged.
Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard Law School.