John Roberts and Donald Trump
Since President Donald Trump returned to the White House in January, the conservative supermajority on the Supreme Court has handed the Trump administration wins in 90 percent of cases on its emergency docket, according to a new comprehensive analysis of rulings across the courts system since inauguration day.
Led by Chief Justice John Roberts and packed with three Trump nominees and two other conservative justices, the Supreme Court rightwing bloc has favored the Trump administration in 21 out of 23 cases on its “shadow docket,” which allows the court to rule on urgent requests without oral arguments and with limited briefings, according to a new report from Court Accountability, a judicial advocacy group.
By contrast, Trump won only 40 percent of approximately 450 district court cases and circuit court dispositions reviewed.
As the Trump administration looks to execute executive orders on issues including deploying the National Guard in major cities, deporting student visa holders for political speech, and limiting birthright citizenship, the Department of Justice is “going straight to the shadow docket whenever an appeals court stands in the administration's way of defying acts of Congress,” said Mike Sacks, senior adviser with Court Accountability.
“Supreme Court precedent reflects this administration's confidence that they have the Roberts Court in their pocket,” Sacks continued.
“This administration has no patience for the usual appellate process and wants to operate at its full anti-constitutional capacity, and this Supreme Court has virtually every time given this administration the green light to do exactly that.”
‘Deeply concerning’
Court Accountability, which is led by two former counsels to Democratic senators, used SCOTUS Blog’s emergency docket tracker for its review.
For lower courts, the group used statistics from the Associated Press’ lawsuit tracker to analyze district court cases and statistics from Lawfare’s Trump administration lawsuit tracker for circuit court cases.
The analysis reveals that district courts, which are generally trial courts, are acting in a more bipartisan fashion because they are “closest to the facts and most bound by the law,” ideologically, Sacks said.
“Some of these judges might have been Republican conservatives during Reagan and Bush but recognize what Trump has been doing has been anti-constitutional and illegal and have no interest in furthering that regime,” Sacks said.
Republican district court judges ruled against the Trump administration in 55 percent of 86 cases reviewed by Court Accountability.
Democratic district court judges ruled against the administration in 63 percent of 237 cases reviewed.
Circuit courts, which are the first level of appeals, are “much more ideological,” Sacks said.
Looking at votes by Democratic and Republican circuit court judges, both aligned with their parties about 85 percent of the time in cases involving Trump administration actions such as executive orders on birthright citizenship and firings of independent agency heads.
Court Accountability looked at votes from 128 Republican circuit court judges and 199 Democratic circuit court judges.
“At this point, you just have two totally different worlds going on in the circuit and in the district courts,” Sacks said.
Sacks said Trump challengers are filing appeals in courts with Democratic majority judges, but they’re still only ruling against Trump 60 percent of the time.
“It's not like these majority Democratic judges are outright partisan hacks constantly going against Trump, just because it's Trump,” Sacks said.
“Just like in the district courts, they're carefully weighing the law. They're carefully weighing the facts and reading the facts and coming down in fair ways and deeply well reasoned ways.
“It's just that when you look under the hood and see what the Republican judges are doing on the appeals courts, they're acting as rank partisans in ways to filter up towards the Supreme Court and laundering reasons to side with Trump.”
Sacks called such partisanship on circuit courts and the Supreme Court “deeply concerning.”
“It reflects the Federalist Society's capture of our courts from the Trump administration on up,” Sacks said.
Under the guidance of conservative legal activist and financier Leonard Leo, the Federalist Society is credited with orchestrating the conservative takeover of the Supreme Court and the courts below it.
Many observers protest that courts should be impartial, as tradition demands. Others point to hard political realities.
Lindsey Cormack, associate professor of political science at Stevens Institute of Technology in New Jersey, recently told Raw Story partisanship was “undeniable” in the judicial branch.
“It's sort of the most political branch in the sense that the only way you can be on the courts is if you're appointed by an elected official, and the only way you're confirmed is if the rest of the elected officials at the federal level say, ‘Yeah, you can play here,” Cormack said.
“It's kind of a nice fiction that we tell ourselves to be like they're not partisan, but we do know that judges have political opinions. Someone put them in office, and someone voted for them, and someone voted against them.”
‘Would-be autocrat”
Sacks called Trump’s second term a “super-charged” version of his first, with more of a rush to bring cases to the Supreme Court.
“Trump 2.0 is operating without any pretense of guardrails or normality or regularity, that at least in some respects, constrained his first administration,” Sacks said.
“What makes the Court's response to Trump 2.0 unprecedented is Trump 2.0’s unprecedented rejection of not only our norms, but our laws and our legal precedents.”
Ultimate responsibility for the Supreme Court’s habitual siding with Trump lies with Roberts, Sacks said.
“Roberts has not only enabled the return of this anti-constitutional regime,” Sacks said, “but now in virtually all of his votes since Trump's return to office, Roberts has made clear that he is perfectly OK with Trump's establishing himself as a would-be autocrat unbound by acts of Congress and Supreme Court precedent.”