Major Decisions by Republican-Appointee Circuit Judges

KEY TAKEAWAYS

• During the Trump administration, Republicans confirmed 54 circuit judges, 27% of total circuit court judgeships.
• Even as Democrats control Congress and the presidency, Republican-appointed circuit court judges are authoring influential conservative opinions and issuing important rulings.
• Republican appointees have made major rulings relating to abortion, agriculture, and internet regulations.

Circuit court judges are the final arbiters of most federal legal issues. Well over 99% of federal court cases go no higher than the circuit courts. The Supreme Court accepts a tiny fraction of the 7,000 to 8,000 petitions for certiorari it receives every year, while almost every federal case can be appealed to a circuit court. The Supreme Court can deny certiorari on cases involving controversial subjects, while the circuit courts must constantly confront virtually every issue.

The importance of circuit courts explains why Senate Republicans confirmed 54 circuit judges during the Trump administration, 27% of the total circuit court judgeships. With lifetime tenure, those judges will maintain conservative jurisprudence for decades to come. Their actions already have had a noticeable effect in areas ranging from abortion to regulation.

Activist Litigation

Activist lawsuits can impose ruinous litigation costs on businesses. One way those lawsuits are limited is the requirement that a plaintiff must be able to point to some particular harm that would be redressed if he or she were to win.

In June, Judge Neomi Rao of the D.C. Circuit wrote the controlling opinion in Food and Water Watch v. USDA, a case that turned on the question of redressability. An environmental group sued the U.S. Department of Agriculture for not conducting a sufficient environmental impact study before granting a loan guarantee. The activists’ contention was that if USDA had performed the study, it would have denied the loan guarantee, so the farm would have changed its conduct to get the guarantee.

Judge Rao found that the harm alleged by the activists was not redressable by the court. This ruling will likely be cited in future decisions in the D.C. Circuit and elsewhere as a limit on lawsuits by activists.

Share of Authorized Active Circuit Judges Appointed by Trump by Circuit

Abortion

The appointment of circuit court judges affects the overall trajectory of law both by changing the judges who hear cases on three-judge panels and by changing the overall composition of the circuits. Seven of the 12 regional circuit courts of appeal now have a majority of active judgeships filled by Republican appointees. The composition of each circuit is important for obtaining a “rehearing en banc,” where all of the judges on a circuit can rehear a case and change the outcome originally decided by a three-judge panel on that circuit. A majority of active and eligible judges in each circuit can order a rehearing en banc, which is why having a conservative majority in a circuit matters.

This was evident in the recent 6th Circuit case Preterm-Cleveland v. McCloud. A three-judge panel upheld a district judge’s decision to strike down an Ohio law criminalizing abortion when the provider knows the woman is getting the abortion because of a diagnosis of Down syndrome.

The 6th Circuit reheard the case en banc and reversed the decision by a 9-7 vote along party-of-appointing-president lines. While the circuit is bound by the precedents of Roe v. Wade and Planned Parenthood v. Casey, the court found that the Ohio law was not an undue burden on abortion because it criminalized the sharing of information regarding the reason for the abortion, not the performance of the abortion.

There has even been some success in the liberal 9th Circuit on abortion. In September 2019, the en banc 9th Circuit heard a case challenging a Trump administration rule that disallowed federal funds to go to pregnancy counseling where the counselor either encouraged or issued a referral for abortion. Plaintiffs included a host of Democratic attorneys general and advocacy groups like Planned Parenthood. The 9th Circuit had initially upheld the rule but the liberal majority of the 9th Circuit had the case reheard. The 9th Circuit is so big that en banc reviews are undertaken by 11 of the court’s 29 judges picked at random – and here it consisted of a majority of Republican appointees, including two appointed by President Trump.

The en banc court upheld the Trump administration’s rule. The opinion was written by Judge Sandra Segal Ikuta. Judge Ikuta, who concluded that the relevant precedent and statutes allowed for the Trump administration to regulate the use of federal funds in this way, stating that the regulation was both “a reasonable interpretation” of the statute and “not arbitrary and capricious.”

Terrorism

In March, a Reagan appointee and two Trump appointees on the 4th Circuit upheld the legality of the Terrorist Screening Database, colloquially known as the terrorist watchlist. Plaintiffs who had been placed on the list alleged that it violated the Fifth Amendment’s due process clause by not including more procedural safeguards.

Judge J. Harvie Wilkinson III, writing for all three judges, noted: “The government has had the authority to regulate travel and control the border since the beginning of the nation. Indeed, this authority is a core attribute of sovereignty.”

Nuisance Lawsuits

In April, an 11th Circuit panel ruled by a 2-1 margin that websites are not a “public accommodation” under the Americans with Disabilities Act.

The plaintiff in the case was a blind man who visited the website for the grocery store chain Winn-Dixie and discovered that it was incompatible with screen-reader software. He testified that, despite going to the physical store for 15 years, he no longer wanted to shop there due to his frustration with the website. In recent years, claiming ADA violations based on website shortcomings has become a common basis for lawsuits.

The district court had entered judgment in favor of the plaintiff. Despite the fact that Winn-Dixie did not make sales on its website, the court found that the website “operates as a gateway to the physical store locations.”

Judge Lisa Branch, writing for the court, reversed in favor of Winn-Dixie. The decision will help limit those nuisance lawsuits in the 11th Circuit, which comprises Florida, Georgia, and Alabama, and where ADA “drive-by” nuisance suits are a notorious problem. The traditionally left-leaning 9th Circuit ruled in favor of a plaintiff in a similar case, meaning businesses in that circuit will still be subjected to this kind of nuisance lawsuit until the Supreme Court rules on the issue.

SCHOOL CHOICE

In February, a 2nd Circuit panel, including two Trump-appointed judges, ruled that the state of Vermont could not deny funding to religious schools based solely on their religious status, as it would be a violation of the Free Exercise Clause of the First Amendment. The plaintiffs, who were parents and students of religious schools, alleged that the denial of funding to these religious schools was an unconstitutional violation of their free exercise rights.

Judge Steven Menashi wrote the opinion of the court and concurred separately to take the arguments of the state head-on, dispelling the notion that the school’s religiosity could preclude it from receiving funding under either the Vermont Constitution or the Establishment Clause. The decision created a split with the 1st Circuit, the contrary position of which the Supreme Court will rule on next term.

SECOND AMENDMENT

In July, Judge Julius Richardson on behalf of a 4th Circuit panel ruled that 18-year-olds have Second Amendment rights and the federal government could not bar them from purchasing firearms because of those rights. The plaintiff sought to buy a handgun because of fear of her abusive ex-boyfriend, who had just been charged with unlawful possession of a firearm. She sought to purchase a handgun from a federally licensed firearm dealer to preserve her safety, but federal law precluded her from doing so.

Judge Richardson’s opinion dove into the original understanding of the Second Amendment, finding that nothing in the historical record precluded 18-year-olds from exercising Second Amendment rights. The judge underscored the importance of the founders in constitutional interpretation, noting that “while Congress – or judges – may have struck a different balance long after ratification, that role is foreclosed to us by the balance the Founders chose. We cannot now second-guess or undermine their choice.”