American justice becoming pure politics

Gordon L. Weil

A group of state attorneys general, all Republicans, decide to go to federal court to block the actions of then President Biden.

A group of state attorneys general, all Democrats, decide to go to federal court to block the actions of President Trump.

They can go to a federal district court anywhere in the country and try to get the judge there to issue an injunction halting the president’s moves.  Better yet, they hope to convince a district judge, no matter how small or remote their jurisdiction, to make that injunction apply across the country. 

That’s often called a nationwide injunction.  Its prime characteristic is its effect on non-parties to the specific case that would be similarly affected by the president’s action.  These non-parties are usually the states that are still on the sidelines, which may be the president’s supporters.

In filing the case, the complaining states can select the district court where they will begin.  They look for a court where the likelihood of finding a judge favorable to them is the highest.  Judges may be selected at random for new cases, so the states look for the smallest pool with judges that share their politics or philosophy.

That’s called “judge shopping” or “forum shopping.”

For the Republicans, the desirable court may sit in Amarillo, Texas, or Fort Pierce, Florida. Each of those courtrooms has only one judge.  In Florida, it’s Aileen Cannon, who always does Trump’s bidding. 

For the Democrats, that may be the court, consisting of three judges, in Providence, Rhode Island.

Of course, the losing side will take an unfavorable district court decision to the Court of Appeals.  There, random selection of a panel of three judges does not assure approval of the district court ruling.  Still, the political orientation of a majority of the relevant appeals court judges may be similar to that of the district court judge.

Politics play a strong role in the nomination of judges. Of course, a president will seek to name judges who share their political views.  Presidents traditionally rely on the input or approval of a state’s U.S. senators in making nominations in their states.

Decisions by Courts of Appeal are likely to be appealed to the Supreme Court, when they involve states disputing presidential powers. Even there, the political orientation of the justices and of the presidents who nominated them may give that highest court a political hue.

It has become usual to see the justices referred to as conservatives or liberals.  They may claim that they merely follow the law, but the law itself must be interpreted, and individual judgments may reflect a justice’s political views.

The Supreme Court is increasingly facing cases involving presidential or executive branch powers.  The public’s need for prompt action and executive pressure has led the conservative-dominated Court to use procedural orders, the so-called “shadow docket,” to make more rapid decisions. 

That process can often allow for rulings with little or no explanation of the Court’s reasoning.  In this situation, it may be influenced by the previous course of the case as it came through the judicial process. Conservative district court decisions, even if they must be modified, percolate upwards.

The Supreme Court has come to make many fewer rulings each session. At the same time, it has given itself an essential role in sorting out questions about the president’s powers.

Will the Court act along partisan lines or try to keep to the law as it has previously been understood?  Trump and his backers count on its ultimate approval of their new views.  Justice Amy Coney Barrett, appointed by Trump, voted against his position in a recent procedural order.  She has been the target of bitter attacks by Trump backers.  They have also called for the impeachment of district court judges who oppose Trump positions.

More district court judges are needed, but new slots have been blocked by partisan warfare.  While the presidential campaign was under way, House Republicans refused to approve badly needed new slots.  After Trump won, they voted for enlargement.  President Biden then vetoed the bill, and no new judgeships were created. 

This was a rare case of the Democrats playing by GOP rules.  But the judicial system suffered because of such partisan tussles. 

The conservative Supreme Court was tilted to the Republicans by Senate GOP maneuvers.  Yet Biden and the Democrats refused to consider enlarging the Court, when they could. 

All the attempts to influence the course of the American political system through judge shopping and nomination games may now have their effect on whether any real limits are placed on Trump’s broad assertion of control.

The last word may belong to judicial partisans as the president pushes his powers and Congress collapses.