Writing in The Atlantic, Jacob Finkel, a former law clerk on the U.S. Court of Appeals for the Third Circuit, argues that “Trump’s Power Won’t Peak for Another 20 Years.”
The Trump presidency may be over, but the Trump era has only just begun—at least when it comes to influence over the nation’s courts. Measured solely by the number of judges he appointed, Donald Trump’s impact is staggering: 234 judges, including 54 powerful appellate judges, almost one out of every three. By comparison, President Barack Obama appointed 172 judges (30 of them appellate) in his first term, while George W. Bush managed 204 (35 appellate).
So, you’d think that this is the moment when Trump judges would be most powerful, no? After all, he will never appoint another one and President Joe Biden will soon start filling his own vacancies, likely soon to include a Supreme Court justice. But it’s about procedure and who controls it.
But Trump will have an even greater influence than this measurement suggests. That is because his judges won’t reach the apogee of their power until the early 2040s, when Trump-appointed chief judges are on track to simultaneously sit atop nearly every appeals court in the country.
This portends a potential disaster for progressive gains in many areas of law, including voting rights and health care. The limelight typically falls on the Supreme Court for these developments, but the lower courts are where much of the action happens. In its most recent term, which ended in July, the Supreme Court issued 63 signed opinions. The Circuit Courts of Appeals, by contrast, decided or issued orders on 48,300 cases in 2020. Although the Supreme Court has the final say, and Trump’s three new justices will shape the law for decades, the large majority of appeals—more than 97 percent—will be decided by the 12 geographic circuit courts, and the 167 appellate judges who sit on them. And the individuals who wield the most influence in shaping those outcomes are the chief judges of each circuit.
Officially, each chief judge has two roles: handling administrative matters and presiding over en banc (“full court”) hearings. Those are important, but they pale in comparison with the remarkable power the chief has behind the scenes—influencing which judges are assigned to which panels. A panel of three judges decides every appellate case, and the composition of those panels can be the whole ball game.
Imagine a nine-judge circuit court with a 5-4 liberal majority. A conservative chief could congregate three liberals in one panel and then erect two panels with a 2-1 conservative edge, swinging the effective conservative weight on that court from a 44 percent minority to a 67 percent advantage. I call this “judicial gerrymandering.”
The techniques that make this possible are already in use. Marin Levy and Adam Chilton, law professors at Duke University and the University of Chicago, respectively, have studied the partisan composition of panel assignments. Their findings “produce strong evidence that strictly random processes are not always used,” thus skewing “the ideological balance of panels.” In plain terms, this means that chief judges are permitted to quietly control which judges sit together, a power that could affect the rights of millions.
Chief Justices of the Supreme Court, going back to at least Warren Burger’s tenure, have been known to shrewdly switch sides in a case in order to control who writes the opinion. (The senior justice on the winning side has that prerogative.) But, since SCOTUS hears all its cases en banc, he can’t control who votes in individual cases. This is indeed a significant power, easily subject to abuse.
How this plays out today is generally pretty benign. On nearly every circuit, the assignment process begins with an automated system that randomly assigns judges to panels before allowing the chief to fiddle with those results. For now, chiefs generally take a minimalist approach to interventions: solving a scheduling conflict or separating panel members who loathe one another. Today’s chief judges would hesitate before aggressively stacking their courts with unequal panel assignments.
But much of what we know about the Trump nominees so far suggests that some may be willing to flout norms to achieve their ends. Many of Trump’s picks have “open experience in ideological and political warfare,” according to a report by The New York Times. A forthcoming study indicates that after 60 years of nonpartisan en banc decisions, the arrival of the Trump judges has fueled “a dramatic and strongly statistically significant” change in the en banc voting process, potentially turning it into “a weapon to advance majority party preferences.” Altering judicial assignments to attain certain results might not be beyond them.
This would be worrisome even if it were to affect only a handful of courts over time, but the reality is much more distressing. Because of a quirk that Trump’s nominations team seized, these judges will enjoy power for decades. When Congress introduced the chief-judge position in 1948, it created a seven-year post that would be filled by a circuit’s longest-serving judge under age 65. Trump’s team exploited that system in two steps. It began by picking nominees younger than Congress had ever imagined; this has been widely recognized, but did not itself maximize the number of future Trump chiefs. The crucial second step was nominating eligible judges in order of age.
Here’s how this is likely to shake out. Although Trump’s picks are unusually young, with an average age of 48, simply appointing three 48-year-olds to a single circuit would have done little good. In most circuits, that strategy would produce a single chief, during whose term the latter two would cross the age-eligibility line. In the optimal scenario, age is carefully aligned with seniority—start with a 48-year-old, followed by a 44-year-old, then a 38-year-old, which enables all three to serve as chief, producing an uninterrupted 20-year rule over their circuit.
That’s interesting, indeed. And it’ll take years to find out how it works out in practice.
Still, since all courts save the Supreme Court are creatures of Congress, they could presumably change how this all operates. They could impose rules on the creation of panels to preclude ideological cherry-picking. They could even change how chief judges are selected, requiring Senate confirmation.
