How Political Will the Courts Get?

As Border Wall Lawsuits Pile Up, Take a Look at The Partisan Make-up of Courts

Publisher’s Riff

by Charles Ellison | @ellisonreport

As suits pile up from states and other interests opposed to the president’s use of the National Emergencies Act for an $8 billion border wall, it might be useful to refresh on the current partisan composition of federal courts, particularly at the Supreme Court level. Refreshing on that make-up will offer glaring clues into the direction of these cases. Unfortunately, it won’t be that difficult to determine outcomes if you know which president appointed which federal judge - and understand that party and ideological leaning have much to do with it.

Naturally, an abundance of legal analysis will discuss the merits of cases as they snake their way through federal courts, from district courts to the appellate systems and finally to the Supreme Court.

But, the president’s own assessment of each case’s chances in the federal judiciary are actually rather instructive - if not seemingly trivial and half-baked in their delivery. But he makes a point here on a number of counts …

We will have a national emergency. And we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there. And we will possibly get a bad ruling, and then we’ll get another bad ruling. And then we’ll end up in the Supreme Court, and hopefully, we’ll get a fair shake, and we’ll win in the Supreme Court, just like the ban.

This shouldn’t be dismissed because of the delivery or the messenger. If anything, the president is offering a somewhat refreshingly honest - albeit dangerous - view of how political the American court system actually is. He’s acknowledging the inherent political value of the courts, that the judiciary is not as apolitical or unbiased or balanced as we typically assume. That’s something Democrats, and many critics of the president, haven’t quite grasped as much as Republicans have. Even, in some cases, there are federal judges appointed by Democrats who seem more interested in maintaining the appearance of an untainted and balanced judiciary than they are in fighting back against administration overreach driven by partisan objectives, as seen in a recent 9th Circuit Court case ruled on last week. In Center for Biological Diversity v. U.S. Department of Homeland Security, a three judge panel ruled in favor of the administration’s claim that it had broad authority to build a “prototype” border walls and replacement fencing, as well as waiving a number of laws including the National Environmental Policy Act, the Endangered Species Act and the Religious Freedom Restoration Act. Two of the judges who ruled in favor were Clinton and Obama judicial appointees while the judge that dissented was, actually, a Bush II appointee. Hence, the Attorneys General filing suit in the 9th Circuit may already find themselves hampered by very recent legal precedent set in favor of the president’s plan.

The federal courts can, and have, been morphed to accommodate partisan, ideological and other nefarious objectives; federal bench appointees are picked not so much according to depth of jurisprudence, but more so on political relationships or the socio-political networks they are members of. Here’s the advantage Republicans/conservatives have over Democrats/progressives at the moment in terms of federal bench make-up ...

This is what the president has accomplished, in a relatively short period of time, by leveraging opportunities to fill the Supreme Court (and other federal bench vacancies) with judges he’s convinced will back him politically - and for moments like this border wall fight …

For someone as historically litigious as Trump, these is a fantasy come true: being in a position where you don’t even have to bribe or influence a job, you simply have the power to install them. Simply put, partisan or political considerations are more than likely to override practical legal considerations. Brennan Center’s Elizabeth Goitein makes a great point that the courts, including the Supreme Court, will likely side with Trump on his rationalization for an “emergency” on the U.S.-Mexico border “even if it’s made up” …

[T]he Supreme Court has already shown its willingness to defer to Trump on claims of national security. When he invoked broad immigration powers to ban travel from majority-Muslim countries after revising the ban twice to deal with objections from lower courts, five Supreme Court justices were willing to credit paper-thin national security justifications and ignore obvious signs of an unconstitutional motive. There is a risk that the Supreme Court or other courts could take a similar approach here — and that they could choose to read the emergency powers themselves quite broadly.

Recognition of the political value of the courts, as opposed to putting faith in a judiciary that’s long been corrupted by political (and don’t forget racial) considerations, may end up being a winning strategy for the president. He’s also able to deflect more attention away from other political and legal entanglements. At best, Democrats and other opponents to the border wall can only hope to sufficiently lengthen these upcoming court battles as long as possible or to a point whereby he’s been electorally ousted from office by the time decisions are made. But even the electoral scenario is a big if, especially if he’s successful at using this latest battle to strengthen support from his base.