August 10, 2019

A new era? Experts examine Trump’s impact on High Court, lower courts

With two new conservative justices on the High Court, both appointed by President Donald Trump; the looming shadow of a retired justice who often played the role of a decider; a conservative-leaning chief justice who appears to be the new centrist on the Court; and major cases trying to make their way on the docket, is this a new era for the U.S. Supreme Court?

That was the question put to an elite panel of lawyers and court watchers during the program titled “Trump Presents: The New Era of the U.S. Supreme Court” on Aug. 9 at the American Bar Association Annual Meeting in San Francisco.

The program, sponsored by the ABA Section of Litigation, was moderated by David Faigman, chancellor and dean at the University of California-Hastings College of the Law in San Francisco.

The panelists were Miguel Estrada, a partner at Gibson Dunn in Washington, D.C., who has argued 23 cases before the Supreme Court; Pamela Karlan, a professor and co-director of the Supreme Court litigation clinic at Stanford Law School; Joan Biskupic, a CNN legal analyst who has covered the Supreme Court for 25 years and written several books on the judiciary; and Kannon Shanmugam, a partner at Paul Weiss Rifkind Wharton & Garrison LLP, in Washington D.C., where he is chair of its Supreme Court practice group.  

Without a doubt, the panelists agreed that the High Court is in a new era.

“First of all, the retirement of Justice Anthony Kennedy last year changed so much for years, even decades [to come],” Biskupic said.  

“Justice Kennedy was the decider,” Biskupic explained. “He was the one who came from a centrist conservative background but then he moved to the left over the years, especially on social policy, and provided a vote with the liberals on things like racial affirmative action, gay marriage and abortion rights.”

“The ideological median at this time on the Court is Chief Justice Roberts,” Biskupic said. “What we saw in this last term, I think, is just a very small snapshot because Justice Roberts right now is very concerned about how the Court is regarded. He doesn’t want the Court to be seen as just another political player. So, as a result we are seeing more incremental steps by this Court and a shakeup period.”

Shanmugam, who has argued 27 cases before the Supreme Court, says the High Court, by the simple matter of adding a new justice, is a new court, but says he doesn’t foresee a dramatic change in its overall jurisprudence.

“This last term really bears that out. If you look at the 5-4 cases, you did not have the stereotypical alignment of Republican appointees as the ‘five’ and the liberal appointees as the ‘four,’” Shanmugam said. “If anything, the norm was the more conservative justices crossing over to join the more liberal justices to make up the majority.”

“A large part of that was due to the makeup of the cases that the Court heard,” Shanmugam went on to say. “I think there are certain areas of the law where the chief justice really will be in the middle of the Court … not just in terms of how the Court decides cases, but in terms of how broadly the Court decides cases and which cases the Court hears.”

One of the types of cases that will give further insight into High Court, the panelists believe, is partisan gerrymandering.

In two cases last term, the justices rejected claims that partisan politics played a critical role in the way congressional districts were drawn in North Carolina (to benefit Republicans) and in Maryland (to give an advantage to Democrats.)

But -- “What happens next in gerrymandering?” Estrada asked rhetorically, “Nothing on the federal level,” he forecast, explaining that Roberts’ thinking is that it is impossible for the judges to come up with a “line” where you can say there is too much politics. “So, if that is true, then is no way [for the justices] to say when there has been a violation.

Karlan said one reason the gerrymandering cases were unattractive to the justices was because “it was really hard to decide that issue without the public thinking that the Court is getting right into the middle of the political thicket, with reporters saying this case went this way because Republican justices thought this and Democratic justices thought that – and the Court didn’t want that.’’

But it’s tough cases like gerrymandering that will define the Court, according to Biskupic. “It will be the major cases like the gerrymandering, where it was 5-4 with the conservatives taking control and Justice Kavanaugh voting in a way that Justice Kennedy had not. So, we are seeing little signs of where this Court is in the Trump era.”

Another hot topic of was of the 146 judicial appointments by Trump and what impact they will have on the judicial system, especially at the lower court level.

“Most of the judges who have been appointed and confirmed are really accomplished lawyers and could have been appointed by any president,’’ Estrada said.

Biskupic called the administration’s judicial nomination process a “well-oiled” machine that she said started back in the spring of 2016 with Don McGahn working with the Federalist Society and Trump tweeting a list of 20 names of Supreme Court candidates that instilled confidence in the Republicans.

“On the lower courts, there have been a record number of appointments to the very powerful appeals court. And by putting out lists of names and by encouraging people to vie for these positions, it’s been much more overt, I think, in terms of opinions being generated,” Biskupic said. “There is a lot of attention-getting opinions that I’ve seen from the lower courts that I think are almost designed to play to people from the Federalist Society and for folks to move up in sequence.”

“The reality is with every administration you see a pretty immediate impact on the lower courts because unlike the Supreme Court you are always going to have a certain number of vacancies because of the sheer number of judges. I think that when you have a president who is aligned with the Senate, which always doesn’t happen, you are going to see nominees getting through more quicker and that is what we’ve seen," Shanmugam said.

“But the real analysis on this,” he continued, “is not the number of judges getting confirmed but who are those judges replacing. I actually think that in this administration there has been a much greater unwillingness of more liberal judges voluntarily leaving their posts. So, what we are seeing is often like-for-like replacements on these courts.”

Asked about what happens to the Supreme Court if President Trump is reelected and the Senate remains in Republican control, Estrada said he believes that “nobody on the left will voluntarily leave the Court.”

Shanmugam went one step further and predicted there may be no confirmations at any court level. 

“One thing that bears thinking about one year out from the election is that the presidency and Senate being controlled by opposite parties, which could potentially happen in either direction, and what that would mean for judicial confirmations,” he said. “I think if we have split party control that we’re going to see absolutely no confirmations probably for any of the courts as the vitriol gets worse.”