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August 07, 2019

Annual 2019: Experts to examine Trump’s impact on High Court

President Donald Trump has spoken often about “Trump judges” and “Obama judges.”

And while the president in his two-and-a-half years in office has moved to remake the federal judiciary with conservative, younger judges — thus far he’s appointed 127 judges to lifetime positions, including 82 to district courts, 43 to appeals courts and two in the U.S. Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh.

Chief Justice John Roberts is on record as debunking the idea of Trump judges or Obama judges.

“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,” Roberts said last November in a rare rebuke of the president, who criticized judges who have ruled against his administration.

“Chief Justice Roberts believes his responsibility as the chief justice is to not be perceived as political and to maintain stability in constitutional jurisprudence,’’ says David Faigman, chancellor and dean at the University of California Hastings College of Law in San Francisco.

Faigman will serve as the moderator for the ABA Annual Meeting program “Trump Presents: The New Era of the U.S. Supreme Court,” on Friday, Aug. 9, at 2 p.m. The program, sponsored by the ABA Section of Litigation, will be held at the San Francisco Marriott Marquis’ Yerba Buena Salons 1-3 on the Lower B2 Level.

Joining Faigman on the program are panelists Joan Biskupic, CNN Supreme Court reporter; Miguel Estrada, partner at Gibson Dunn in Washington, D.C.; Pamela Karlan, professor at Stanford Law School; and Kannon Shanmugam, partner at Paul Weiss Rifkind Wharton & Garrison LLP in Washington, D.C.

Roberts’ role as the new swing vote on the Court and what that means will be one of the topics of discussion, according to Faigman.

With the retirement a year ago of Justice Anthony Kennedy, the Supreme Court’s longtime swing vote, court watchers wondered about the High Court’s makeup. Roberts, especially after siding with the Court’s four liberal justices in rejecting challenges in two key cases this past term – gerrymandering and a controversial citizenship question to the 2020 census ­– is now seen as the Supreme Court’s new ideological center.

“I think the sense is that Roberts has a sense of history, and for now he is playing a steadying influence because he doesn’t want his legacy to be that this court is the ‘Trump court’ but that he wants it to be the ‘Roberts court,’” Faigman speculates. “Whether that will continue into the future remains to be seen.”

In addition to Roberts’ role, the panelists will discuss where the Court has been and where it is today and what we might expect in the next term and thereafter. Faigman says to expect spirited discussion on the topics of gerrymandering, abortion, citizenship and the census, free exercise of religion, Second Amendment gun rights, DACA and immigration, presidential executive orders and judicial precedent. These were all cases before the court during the just completed 2018-19 term.

“This debate about judicial precedent and the belief that there is little if any value in precedent is an interesting one,’’ Faigman says.

In a case during the last term over whether the federal government and states can prosecute someone separately for the same crime, Justice Clarence Thomas urged his fellow jurists to feel less bound to upholding precedent. Of Gamble v. U.S., he said the justices should not uphold precedents that are “demonstrably erroneous,” regardless of whether other factors supported letting them stand.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” wrote Thomas, who has long expressed a greater willingness than his colleagues to overrule precedents.

“This Court is at a crossroads and it’s likely to be distinctly right of center and likely to be non-deferential to precedent, Faigman says. “And when you are nondeference to precedent, then the world is your oyster because they can essentially rethink or revisit virtually any major Supreme Court decision from the last 200-plus years.’’

The Court’s docket for the next term, which begins in October, will take up a number of significant cases, including whether the DACA policy is judicially reviewable and whether the U.S. Department of Homeland Security’s decision to wind down DACA is lawful; three cases on whether Title VII of the Civil Rights Act protects LGBTQ individuals from employment discrimination; a Kansas case in which the High Court will decide whether the Immigration Reform and Control Act preempts states from using information from federal Form I-9 to prosecute a person under state law; and a case in which the Court will decide whether the Eighth and 14th Amendments allow a state to abolish the insanity defense.