Donald Trump will not be president of the United States forever. He will lose his reelection bid in 2020 or be term-limited out of office in 2024. Or perhaps the inevitable result of human frailty will do its work and put an end to Trump’s ongoing illegal reign. Most people now living will outlast his presidency and be left to pick up the pieces of the shattered nation he will leave behind.
But Trump’s Court—the collection of judges and justices now swarming our judicial system, nominated and confirmed to lifetime appointments on his recommendation—will linger, like an infected wound poisoning the body politic even after the initial injury has scabbed over. As of this writing, the Trump administration has had 123 federal judges confirmed, including 41 to the federal courts of appeal—the circuit courts just one rung below the Supreme Court. By comparison, at this point in his presidency, Barack Obama had pushed only 19 circuit-court judges through to confirmation. Trump’s appointees now account for some 14 percent of the federal judiciary and more than 22 percent of the judges on the nation’s courts of appeal—and he has been in office for just two and a half years. Many of Trump’s other offenses could be overturned by a new president with the stroke of a pen. Trump’s Court will remain as his legacy.
The characteristics of these new Trump judges are not limited to their hostility toward a woman’s right to choose. Trump promised anti-choice judges, and he has made good on that threat. But while tapping judges who can be trusted to oppose the Supreme Court precedent of Roe v. Wade, he has also dredged up those who share a nasty disrespect for any individual rights that don’t flow from God or the barrel of a gun.
Trump judges are dismissive of LGBTQ rights and protections—in some cases, to the point of open bigotry. They’re hostile to minority voting rights and claims of racial or gender discrimination. They’re largely young and inexperienced, and an unsettling number have earned their stripes as partisan think-tank writers, op-ed columnists, or even bloggers. They believe in deregulation to the point of corporate anarchy, meaning that significant climate-change proposals might have to wait until they can be enacted over these judges’ literal dead bodies. And they don’t much resemble the rest of the country: 78 percent are male, and 87 percent are white. Appealing to Trump’s Court is like letting the board of governors at your local yacht club—or Proud Boys chapter—decide your fate.
The Trump Court, of course, is not actually Trump’s idea; he probably wouldn’t be able to tell you the difference between Chief Justice John Roberts and Judge Wapner. But Trump has been all too happy to play along with the game orchestrated by Senate majority leader Mitch McConnell and his coterie of Senate enablers because—it’s a deal, see? Trump delivers the judges, helping fulfill the conservative movement’s long-cherished dream of remaking the judiciary, and his base remains content.
For McConnell, this moment has been a long time in the making. Even before he blocked Merrick Garland, who was nominated by Obama for the Supreme Court after the death of Antonin Scalia, McConnell had been busy systematically stymieing the previous president’s judicial appointments. This years-long campaign of obstruction left an astonishing 106 judicial vacancies at the end of Obama’s second term and is a prime reason that Trump has been able to fill seats at such a brisk pace. The senator was playing a very long game.
Still, McConnell and Trump would not have been able to capitalize on this obstruction if they hadn’t had help from a network of far-right legal arsonists who have spent the better part of the last decades working to change the federal courts from the protectors of last resort for minority rights to the enforcement arm of the Republican Party. These include organizations like the Heritage Foundation, the Alliance Defending Freedom, the Judicial Crisis Network, and above all the Federalist Society. When Trump MAGA’d his way to the White House, the Federalist Society was ready with a raft of archconservative nominees that it had been incubating to unleash on the country.
Funded by powerful right-wing donors—including Charles and David Koch, Robert and Rebekah Mercer, and the Scaife foundations—the Federalist Society has become the de facto Department of Judicial Appointments in the Trump administration. It’s the Federalist Society, not the White House, that does the serious vetting of many potential nominees. A significant number of Trump’s appointees have come with some sort of approval from Leonard Leo, the Federalist Society’s leader. For Supreme Court appointments, Leo and McConnell give Trump a list. When it comes to lower-court appointments, I’d be shocked if Trump knew anything more than the names of most of the people he’s nominating.
The Federalist Society and McConnell want the same thing: the supremacy of the Republican political agenda. And now they’ve almost won. We stand on the brink of a precipice. In March, Trump finally flipped the critical Third Circuit Court of Appeals (which covers New Jersey, Pennsylvania, and Delaware), achieving a majority of judges appointed by Republicans instead of Democrats. In other regions, he’s made the GOP-controlled circuit courts even more conservative.
The Republicans, of course, already control the Supreme Court. If Trump wins a second term, the conservative Anschluss of the lower courts will be complete. And these courts are incredibly important. The Supreme Court heard only about 70 cases during its 2018–19 term, out of nearly 7,000 that are filed annually for potential review. For all the cases that are not taken up by the Supreme Court—the vast majority—these lower courts serve as the final arbiter.
Nothing can reasonably be done to remove the people on Trump’s Court from their current positions. The damage they’ll do for the rest of their lives is our collective punishment for not caring or voting on the basis of court appointments sooner. But we should know who these new judges are, and we should understand what they’re up to.
Institutions like the Alliance for Justice have done a thorough job of tracking the men and women who make up the Trump Court, and their reports make for illuminating, if terrifying, reading. However, since no one has time to read over 100 profiles of judges who think the Second Amendment protects your right to own a tank, The Nation has come up with a list of seven who exemplify what Trump and McConnell are up to. Let’s call them the Seven Injustices. They are old-school originalists and newfangled activists. They are torture advocates, LGBTQ antagonists, rape apologists, Islamophobes, and Confederate-monument defenders. They are anti-abortion fundamentalists. And they are remaking the law. Some of these people will end up on Supreme Court short lists; others will simply continue to choke off your rights, quietly but relentlessly, for the rest of their lives. We’d better be ready for them.
Don R. Willett
The First Injustice
Position: Fifth Circuit Court of Appeals
Hostile to: Civil rights, federal laws, gun regulations
It makes sense that our Twitter president would nominate a Twitter judge. Nearly every story about Texas Judge Don Willett mentions his Twitter feed, mainly because he has one and it’s exceedingly rare for a judge to have any kind of presence on social media. Unlike Trump, Willett has tended to cop an “aww, shucks” Twitter persona, praising his mother and presenting himself as an affable, God-loving family man.
Hidden among the dad jokes and puppy pictures, however, you’ll find a meaner streak that exemplifies his judicial opinions. In one tweet, Willett, a fierce opponent of marriage equality, joked that he could “support recognizing a constitutional right to marry bacon.” In another, he called a transgender woman allowed to play on a girls’ softball team “A-Rod.” Apparently, he’s another cis-dude bro who thinks the transgender-equality movement is just another ruse for people who want to cheat at high school sports.
Since Willett was confirmed to the Fifth Circuit in 2017, his Twitter feed has fallen silent, and we have only his record and his decisions to go on. That record is anything but kind. He previously served on the Texas Supreme Court, and none other than religious-right leader James Dobson of Focus on the Family called Willett the “most conservative” judge on the court—a claim he proudly repeated in a campaign ad.
Touting yourself as the most conservative judge on a court in Texas is like boasting about being the most violent member of your street gang. It’s a terrifying thing to be proud of, even to other members of the gang. But Willett wasn’t fronting; in decision after decision, he backed up his boast.
Prior to the Supreme Court’s decision protecting same-sex marriage in Obergefell v. Hodges, Willett refused to extend full faith and credit to same-sex marriages performed in other states. He dissented from an opinion that allowed a same-sex couple to be divorced in Texas. After Obergefell, he did everything he could to delay the implementation of same-sex marriage in Texas by lodging purely procedural objections. He ruled, again post-Obergefell, that the spouses of public workers in same-sex marriages can’t receive employment benefits through their partner.
Even before Willett became a Texas judge, his personal agenda was well documented. He worked for George W. Bush when Bush was governor of Texas. As director of research and special projects, Willett wrote a memo about a proclamation that Bush was set to issue honoring the Texas Federation of Business and Professional Women. That memo leaked. In it, Willett wrote in part:
I resist the proclamation’s talk of “glass ceilings,” pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better “working conditions” for women (read: more government).
Yes, the man who puts the mention of glass ceilings and better working conditions for women in scare quotes is now a federal judge who may strike down federal laws that seek to ameliorate inequities he thinks have been debunked. And he might someday be a Supreme Court justice. Willett’s name was floated by some hard-core conservatives as a possible nominee when Justice Anthony Kennedy retired. Willett never made the short list for the spot, which eventually went to Brett Kavanaugh, possibly because that old Twitter feed of his included a few disparaging remarks about Trump. (Willett, like many of the GOP faithful, was against Trump before he was for him.)
But on the Fifth Circuit, Willett has done what he could to stay in Trump’s good graces. He wrote a blistering dissent in a Second Amendment case, lamenting that the amendment was “scorned as fringe.” If Willett considered the number of bodies annually sacrificed to the Moloch that is the Second Amendment, he might see why others hold his position in such scorn. But gunmongering is a position that gets the Trump people riled up.
Most important for Trump, Willett was one of two judges behind a controversial ruling in Collins v. Mnuchin for the Fifth Circuit holding that the president could fire the head of the Federal Housing Finance Agency. The FHFA is a minor agency, but the way Willett and his fellow judge described the agency made it sound as if the FHFA were similar in structure to the Federal Reserve. By creating this connection, the decision could someday provide a useful precedent for Trump to dismiss the head of the Federal Reserve if the country’s central bank doesn’t do what Trump wants on interest rates.
Explaining the ruling, ThinkProgress justice editor Ian Millhiser wrote that the Collins decision “is a potential recipe for economic and political disaster—a central banking system subject to the whims of Trump’s reelection campaign.”
That’s the kind of decision the people who read Trump his bedtime stories will notice.
Most people are better humans in real life than they appear to be on Twitter. Willett is the opposite. Twitter is where he went to appear friendly and reasonable. His judicial opinions are where he trolls to own the libs.
Chad Andrew Readler
The Child Cager
Position: Sixth Circuit Court of Appeals
Hostile to: Children, health care, immigrants, lung health
Chad Readler is what happens when Democrats refuse to make judicial appointments a key factor in campaigns for the US Senate. Readler was nominated by Trump to fill a seat on the Sixth Circuit Court of Appeals before the end of the 115th Congress, when Republicans held just a one-vote majority in the chamber. His nomination was quietly sent back to Trump without the candidate receiving an up-or-down vote.
Emboldened by the 2018 midterm results, which saw Republicans gaining seats in the Senate, Trump renominated Readler and 50 other unsuccessful Trump nominees in front of the current 116th Congress. This time, Readler squeaked by, 52-47, despite the decision by Republican Senator Susan Collins of Maine to break ranks with her party and vote against the nominee.
You see what happens? I hope some of the interchangeable centrist white guys running for the Democratic presidential nomination remember how important it is that Democrats take back the Senate and return to their home states to help in that effort.
Before his elevation to the Sixth Circuit, Readler was serving as then–Attorney General Jeff Sessions’s right-hand man in the civil division of the Department of Justice. There he was the lead defender some of Trump’s and Sessions’s most sadistic policies. When Texas (and other states) sued to prevent the Affordable Care Act from mandating coverage of preexisting conditions, Readler filed the Justice Department’s brief in support of that effort.
The Department of Justice is supposed to defend federal programs like the Affordable Care Act from lawsuits. Sessions’s decision to abandon the ACA was an act of sabotage. Readler didn’t have to go along with it. In fact, three other career DOJ officials refused to take part; one even resigned. Readler’s decision to lead the fight at the DOJ is an indication that he will continue the fight against Obamacare from the bench.
That’s probably what cost him Collins’s vote. For the rest of us, Readler’s unabashed defense of the Trump administration’s cruel child-separation policies for migrant families should earn him a place in every attack ad funded by any Democrat running for Senate. This is from Readler’s brief in response to the ACLU’s lawsuit aimed at ending child separation:
Plaintiffs persist in ignoring the fact that the separation of a purported family unit is a Government action or decision that does not occur in a vacuum, but rather occurs as an incident of lawful immigration and criminal enforcement, and thus it does not violate Plaintiffs’ rights under the Fifth Amendment or the Administrative Procedure Act.
Remember that some of these kids who were separated will never see their “purported family unit” again.
Readler seems to have a particularly cruel streak when it comes to nonwhite children. At the Justice Department, he defended ending the Deferred Action for Childhood Arrivals program. He defended the Muslim ban. He defended withholding funds from sanctuary cities. Readler also asked for a departure from the Flores Agreement, which requires humane conditions for immigrant children held in detention—think access to blankets and toothbrushes—as well as their prompt release.
But Readler doesn’t just threaten children because it’s his job. He once wrote an op-ed in the Los Angeles Daily Journal titled “Make Death Penalty for Youth Available Widely.”
Before Sessions picked Readler to help carry out human rights violations, he was a partner at the law firm Jones Day. He got his start as a Big Tobacco lawyer, which is a nice way of saying he went to finishing school for henchmen. (Jones Day has acted like a farm team for Trump’s judicial appointments, sending 17 lawyers to his administration, including former White House counsel Don McGahn and two federal judges: Readler and DC Circuit Court abomination Gregory Katsas.) At Jones Day, Readler represented RJ Reynolds as it challenged an ordinance in Buffalo, New York, that prohibited tobacco ads from appearing within 1,000 feet of (wait for it) schools, playgrounds, and day-care centers.
It’s critical that Democrats make Readler a campaign issue. Some Trump judges hide their retrograde views in legalese, but with Readler the inhumane policy agenda is in plain view, for all to see.
Republican senators voted for a guy who would rather give migrant children a pack of cigarettes than a tube of toothpaste. Put that on a bumper sticker.
James C. Ho
The Torture Whisperer
Position: Fifth Circuit Court of Appeals
Hostile to: Human rights, dignity, campaign-finance regulation
One of the worst things about Donald Trump is that he’s made some people forget what a truly terrible president George W. Bush was. When it comes to judicial appointments, we have to remember that many of the judges appointed by Trump would have also been appointed under George Bush, Jeb Bush, or even the sycophantic Billy Bush. We have to remember that all Republicans, including the never-Trumpers, have been complicit in this conservative takeover of the federal judiciary.
James Ho is the terrifying amalgam of 30 years of post-Reagan conservative legal malpractice. He somehow combines all of the old-school conservative nightmarishness with being a new-school Trump warrior doused in inexperience, partisan hackery, and naked ambition.
Most people have heard of Jay S. Bybee and John Yoo. As assistant and deputy assistant attorneys general in the Justice Department’s Office of Legal Counsel, they were among the principal authors of the so-called torture memos, which informed the Bush administration that “enhanced interrogation techniques” did not violate the Geneva Conventions.
But who assisted them with this research? That would be Ho, whose (still unpublished) work was cited in a torture memo that tried to distinguish torture from “other acts of cruel, inhuman, or degrading treatment or punishment.” If Abu Ghraib and the Law were a course you wanted to take, Ho could probably teach it.
And it’s not as if Ho were just some young lawyer merely following orders to justify torture. He went on to write a law-review article with Yoo that argued that Al Qaeda and Taliban fighters were not “lawful combatants” and thus not entitled to protection under the Geneva Conventions.
Ho is one of the clear bad guys in our country’s shameful treatment of prisoners in Iraq and Afghanistan. Naturally, that means he spent the post-Bush years making hundreds of thousands of dollars at megafirm Gibson, Dunn & Crutcher, helping lead its constitutional law division. Now Trump has plucked him out of his law firm and put him straight on the Fifth Circuit.
As a judge, Ho has wasted no time putting his terrible positions into practice. His first opinion was to invalidate a campaign-finance restriction, a pet project of his. His ruling was no surprise; in a Federalist Society publication, he argued for abolishing “all restrictions on campaign finance.” But as Slate’s legal analyst and Supreme Court correspondent Mark Joseph Stern noted, “What was startling was the petulant partisan tone of his opinion.” Ho wrote, “If you don’t like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s prerogative—it becomes a human necessity.”
To call this circular logic is an insult to circles. Ho seems to believe that citizens should cede the public sphere to the monied interests so that those interests can reduce the size of government to a point that citizens don’t have to worry about it. Which is great as long as you don’t need the government to maintain roads and bridges on your way to work or reduce warming on the planet so your children don’t have to sprout gills in order to visit you in Miami.
Ho has argued in support of the death penalty and against same-sex marriage, which seems to be a requirement to get a judicial appointment in the Trump era. Since he’s been on the bench, he has embraced his inner anti-LGBTQ streak, arguing in one recent opinion—in a case in which a transgender woman brought a sex-discrimination claim against her employer—that the protections of the 1964 Civil Rights Act should not apply to LGBTQ people. “For four decades,” Ho wrote, “it has been the uniform law of the land, affirmed in eleven circuits, that Title VII of the 1964 Civil Rights Act prohibits sex discrimination—not sexual orientation or transgender discrimination. But that uniformity no longer exists today.”
For what it’s worth, that opening statement is not entirely correct. While there has been no definitive ruling formalizing Title VII protections for the LGBTQ community, federal courts have been expanding the definition of sexual discrimination since at least 1989 to include people discriminated against because of their “sexual stereotype.” Next year the Supreme Court will likely settle the issue of whether LGBTQ workers are protected by the Civil Rights Act, and given the makeup of the court, they will likely decide the issue wrongly. But that doesn’t mean Ho is on solid legal ground. His argument about the limits of Title VII might well apply to the next four decades, but it has not applied to the last few.
James Ho is what you’d get if Dick Cheney and Mike Pence had a baby who was raised by a political action committee. That he may well have been appointed not just by Trump but by any Republican president reminds us that Trump’s judges, like the man himself, aren’t merely quirks of this fetid moment; they’re the extremist offspring of more than three decades of conservative thought.
The MAGA Warrior
Position: District Court for the Western District of Tennessee
Hostile to: Islam, voting rights, reproductive justice, gay rights, evolution
The US Supreme Court is, for the most part, an appellate court. So are the various circuit courts of appeals. The distinction between an appellate court and a trial court—or a district court, as they’re known in the federal system—can sometimes seem like legal mumbo-jumbo to nonlawyers, but it’s important to understand what these various courts do.
An appellate court can only make rulings based on the law, while a district court is the finder of facts. Technically, when making rulings, appellate courts are almost always bound by the facts as defined by district courts, giving them crucial power to shape how legal cases proceed. (Granted, the higher courts reverse district courts on essentially factual grounds all the time, but they’re not supposed to.) Moreover, only a small fraction of civil cases get appealed after district courts’ decisions. In most cases, their rulings are final.
It’s hard to pick the actual worst district-court appointment in the Trump era, but for pure cartoonish villainy, you wouldn’t be wrong to pick Tennessee Judge Mark Norris.
Before he was named to the district court, Norris was the majority leader of the Republican-controlled Tennessee State Senate. Prior to Trump, it was rare to nominate judges whose experience was purely in partisan politics. Operatives are not impartial—which judges are supposed to be (or at least to appear). But under Trump, partisan bias isn’t a bug; it’s a feature that Trump and McConnell seem to be looking for in judicial nominees.
Unfortunately, the word “bias” doesn’t do justice to Norris’s open bigotry. He’s anti-Muslim, plain and simple. As majority leader, he pressured Tennessee into filing a first-of-its-kind lawsuit opposing the resettlement of Syrian refugees in the state, without the approval of Tennessee’s Republican governor and Republican attorney general. Part of his stated opposition to the refugees was that too few Syrian Christians were included.
As he was pursuing that lawsuit, Norris led an online campaign to oppose refugee resettlement, posting one ad that read, “Keep Terrorists OUT OF Tennessee”; another showed a line of people carrying their belongings juxtaposed with a picture of a man holding what appears to be an ISIS flag under the headline “Refugees or Terrorists?” It was the kind of bigoted imagery you shouldn’t tolerate from your uncle when he shares it on social media, yet Trump expects us to tolerate it from a federal judge.
Norris also supported an anti-Sharia bill that effectively sought to criminalize Islam. The Council on American-Islamic Relations said the bill would have essentially made it “illegal to be a Muslim in the state of Tennessee.”
In the service of his political agenda, Norris hasn’t hesitated to disregard Supreme Court rulings—an unusual trait in a judge. He supported legislation that would have directly conflicted with the Supreme Court’s ruling in Obergefell v. Hodges by compelling courts to follow Justice Antonin Scalia’s dissent rather than the majority opinion. Making this guy a judge is like making a guy who argues “the speed limit is for wimps” a driver’s-education instructor.
Speaking of driving: Norris supported legislation that would have made the state’s driver’s-license exam available only in English. And, of course, Norris supported Tennessee’s restrictive voter-ID laws, even trying to include an amendment that would have allowed election officials to selectively demand proof of citizenship from people registering to vote. If you “look like” a citizen, you’re good, but if you don’t look the part, Norris wants to see your papers.
The list could go on and on. Norris cosponsored a bill that prohibits the removal of Confederate monuments in Tennessee. He wants creationism—but not climate science—taught in classrooms. He cosponsored a successful amendment to the state Constitution that reads, “Nothing in this Constitution secures or protects a right to abortion,” and explicitly makes no exception in cases of rape, incest, or danger to the life or health of the mother.
This guy’s a federal judge now. For the rest of his life, he gets to take first cut at the facts brought before his court. The only saving grace is that Norris is already 64 and there are limits to what modern medical science can achieve.
Position: DC Court of Appeals
Hostile to: Consent, women’s rights, regulation, disability rights, health care
It wasn’t enough for Republicans to put an alleged attempted rapist on the Supreme Court. They had to double down by confirming a rape apologist to fill Brett Kavanaugh’s seat on the DC Circuit. Neomi Rao’s history of retrograde views on rape, sexual assault, and violence against women should disqualify her from a seat in the Game of Thrones writers’ room, much less a position as a powerful federal judge. That all the Republican senators saw fit to confirm Rao is an indictment of their entire party.
As an undergraduate at Yale University, Rao was a conservative hot-taker. Here’s her view on date rape: “Although I am certainly not arguing that date rape victims ask for it, when playing the modern dating game women have to understand and accept the consequences of their sexuality. Some feminists chant that women should be free to wear short skirts or bright lipstick, but true sexual signals lie beyond these blatant signs. Misunderstandings occur from subtle glances, ambiguous words.”
In another writing, Rao said that women who are too intoxicated to give informed consent have, by drinking to excess, made a kind of “choice.” And on the issue of race, she wrote that her college “drops its standards only for a few minorities.” She also accused “multiculturalists” of trying to “undermine American culture.”
Some have argued that bringing up a judge’s college writings is unfair. I say that when you’re confirming someone to a lifetime appointment on the DC Circuit, which is widely regarded as the second most important court in the country (behind only the Supreme Court), everything is fair game.
In 2019, during the heat of her confirmation process, Rao finally “apologized” for her college remarks, writing that she regretted the “insensitivity” she displayed earlier. But even in a world where we’re supposed to believe that conservative judges magically realize the error of their ways when under direct questioning from United States senators, Rao’s “evolution” came late in the game. As recently as 2018, she passed off her previous hot takes as merely “participating in the debates of that time.”
Luckily, we don’t just have to look at what Rao said; we can also look at what she did. Her writings are intellectually consistent with her career.
After college and law school, Rao clerked for Supreme Court Justice Clarence Thomas. (While the justice is famously silent when it comes to questioning lawyers during oral arguments, he found plenty of voice to call up senators and campaign for her confirmation.) She also interned at the Institute for Justice, which is a “libertarian” nonprofit law firm founded with the help of the Koch brothers’ cash. She served in the White House Counsel’s Office under President George W. Bush and eventually landed a teaching gig at George Mason Law School. Besides founding the Center for the Study of the Administrative State—essentially a think tank for the kind of deregulatory anarchy preferred by former key Trump strategist Steve Bannon—Rao’s most notable contribution at George Mason was helping make the law school change its name to the Antonin Scalia School of Law after it received a grant from the Charles Koch Foundation.
As a law professor, not a college student, Rao called the Violence Against Women Act “grandstanding.” She wrote two law-review articles defending dwarf-tossing. This adult woman actually defended the practice of throwing little people for sport and money.
In 2017 she was confirmed as the head of the Office of Information and Regulatory Affairs in Trump’s Office of Management and Budget. In that position, she oversaw intense regulatory rollbacks, including a proposal for a domestic gag rule that would prohibit Title X doctors from referring patients to abortion clinics. One of her very first acts was to remove the Obama-era regulations that required employers to report pay along racial and gender lines. And she found time to roll back Environmental Protection Agency regulations regarding how often oil companies have to check their oil and gas wells for methane leaks.
By the way, it is Rao’s thirst for deregulation that really makes conservatives at The Wall Street Journal excited. All of her victim-bashing is a nice dessert, but her regulatory rollbacks at OIRA are the main course. It’s important to understand that the DC Circuit, because it’s based in the nation’s capital, usually gets first crack at cases involving the government’s regulatory authority. If you have a problem with the EPA blocking you from building a wall across a floodplain or the Department of Energy telling you to stop dumping mercury near an elementary school, the DC Circuit is the likely place for your case to end up.
Usually, college students who believe dumb things are educated by life as they mature. But Rao was coddled and sheltered by the entire conservative movement. Now she’s all grown up and tossing around a gavel on the nation’s second most powerful court.
Stuart Kyle Duncan
Judge Bad Old Days
Position: Fifth Circuit Court of Appeals
Hostile to: LGBTQ rights, women’s rights
For conservatives, it’s no longer enough to nominate judges who merely won’t protect women, the LGBTQ community, and people of color from discrimination; now they want judges who have been on the front lines of the culture wars, firing off rounds and hurling grenades.
Kyle Duncan is that kind of culture warrior. Prior to being elevated to the Fifth Circuit, he spent time as Texas’s assistant solicitor general and worked for the Louisiana attorney general. Those are fairly standard positions for a conservative appointment. But in 2012, Duncan joined the Becket Fund for Religious Liberty, which was called “God’s Rottweilers” by Politico. The Becket Fund is a nonprofit religious legal organization that seeks out cases through which it can harm gay rights and women’s rights under the guise of “religious liberty.”
People might not know of the Becket Fund, but they know of the group’s most famous success: Burwell v. Hobby Lobby Stores Inc., the case that allowed businesses to block women’s access to basic health care if the employer has a religious objection to birth control. Duncan was the lead counsel for Hobby Lobby in that case.
After his work with the Becket Fund, Duncan started his own law firm. There he again took cases that illustrated his ideological antipathy toward the LGBTQ community. Remember Gavin Grimm, the transgender child who was trying to use the boys’ bathroom at his school? Duncan was lead counsel opposing Grimm and his right to use the bathroom of his choice. Duncan’s brief featured all of the “gender fraud” tropes traditionally deployed against transgender individuals, illustrating the common right-wing belief that they are just trying to sneak a titillating peek into the wrong locker room.
Also at his firm, Duncan was lead counsel in Carcaño v. McCrory, the North Carolina “bathroom bill” case in which the state sought to outlaw its municipalities, like Charlotte, from extending LGBTQ antidiscrimination protections to those using public bathrooms. In the case, Duncan introduced “expert” testimony suggesting that transgender individuals are mentally ill. “What is missing is sound science to show that gender identity discordance is not a delusional state,” one of these “experts” argued. Another opined:
In psychiatry, a delusion is defined as a fixed, false belief which is held despite clear evidence to the contrary. In psychiatric practice, patients with the common diagnosis of anorexia nervosa have the false belief that they are overweight (“fat”) in spite of overwhelming evidence of their cachexia. Similarly, those who are gender incongruent believe they are of the opposite sex despite clear and overwhelming evidence to the contrary.
We have been here before—in the previous century. It wasn’t until 1973 that the American Psychiatric Association removed homosexuality from its list of mental illnesses. Duncan’s attempt to drag us back to those times suggests not a purely legal objection but rather a seething anti-LGBTQ bias that he is all too ready to indulge. While working for the Louisiana attorney general, he filed an amicus brief opposing same-sex marriage, and when the Supreme Court’s decision in Obergefell came down, Duncan suggested that the decision “raises a question about the legitimacy of the Court.” He has also been counsel in cases opposing the right of same-sex couples to adopt children. And he’s tried to get courts to uphold discriminatory “defense of marriage” statutes.
If you’re a member of the LGBTQ community, you couldn’t trust Duncan to give you an impartial hearing on your parking ticket, much less a neutral adjudication of your civil rights.
Speaking of civil rights: Duncan still finds time to argue against nonwhite minorities. At his private firm he represented North Carolina, helping the state defend its discriminatory gerrymandering. (In June the Supreme Court allowed the state’s discriminatory maps to remain in place.) And while he hasn’t been given major opinions in his brief time on the Fifth Circuit, he joined a three-judge per curiam opinion (in which the judge who wrote it goes unidentified) upholding a Mississippi city’s right to fly Confederate flags over public buildings.
Duncan is here to take us backward. He lusts for a time when minorities knew their place, women did not have control over their own bodies, and LGBTQ people were treated as mentally disturbed deviants. You know—the time when America was allegedly great.
Amy Coney Barrett
Position: Seventh Circuit Court of Appeals
Hostile to: Reproductive rights, judicial precedent
If Trump wins a second term and Justice Ruth Bader Ginsburg turns out to be mortal, then Seventh Circuit Judge Amy Coney Barrett could be on the Supreme Court. As reported by Axios, the president has literally told members of his inner circle, “I’m saving her for Ginsburg.”
It’s a prospect that makes the right wing positively giddy. The hard right wanted Barrett to replace Anthony Kennedy when his seat came open last year. At the time, New York Times columnist Ross Douthat tweeted that Barrett would “trigger the libs.” National Review’s David French argued that only someone like Trump could nominate her, writing, “Would another Republican have the guts to put forward a nominee who would so clearly inflame the culture wars?”
Barrett elicits such excitement not just because she’s a hard-core religious conservative but also because she’s a hard-core religious conservative woman whose writings, statements, and judicial opinions suggest she could be open to imposing her theology upon the law. Conservatives think she can smuggle anti-woman views onto the court, in her purse, because their way of playing identity politics is to get a member of the oppressed group to join in the oppression. (See Clarence Thomas’s entire career.)
Barrett is a member of a Catholic-adjacent group called “People for Praise.” It is a theologically conservative group with a hierarchical leadership structure, according to University of California, San Diego anthropologist Thomas Csordas. Group members swear “a lifelong oath of loyalty” (something that probably excites Donald Trump), donate 5 percent of their income to the group, and, says the group’s leader, Craig Lent: “we’re not just praying together, we’re putting our lives in common.” Members are assigned a same-sex leader or guide, called a “head” for men and, until recently when I imagine someone over there got a Netflix password, a “handmaid” for women.
Judges are welcome to believe in whatever they want, of course. Five of our current Supreme Court justices are Catholic, and a sixth, Neil Gorsuch, who now attends an Episcopal church, was raised Catholic, as I was. So was Barrett’s mentor Antonin Scalia. The problem with Barrett is that her faith appears to be deeply and unabashedly tied to her judicial philosophy. Shortly after graduating from law school at Notre Dame, she cowrote an article in the Marquette Law Review about Catholic judges and the death penalty. The piece quoted Justice William Brennan’s promise to be governed by “the Constitution and the laws of the United States,” as opposed to his faith, and concluded that his position was not the “proper response for a Catholic judge to take with respect to abortion or the death penalty.”
Barrett claimed in her confirmation hearing for the Seventh Circuit that she would “never impose my personal convictions upon the law.” In the article in which she disagreed with Brennan’s position, she also wrote that judges shouldn’t try to “align” the law with the Catholic Church’s moral teachings when they diverge. But you’ll have to take her promised secularism on faith, because her earthly record leaves something to be desired.
Barrett is skeptical of a bedrock principle of secular law: the application of precedent. She has theorized that the “rigid” application of precedent might “deprive” litigants of their due-process rights to have a hearing based on the particular merits of their case, which is a whackadoodle theory so out there, she might as well be saying, “Gravity offends my natural right to fly, so I’m going to ignore it as I jump off this roof.” Elsewhere she wrote, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” That’s basically Judge Dredd’s formulation “I am the law,” dressed up with legalese.
Barrett does not advance these theories simply so people like me can dunk on her. She does it, her critics argue, in the service of killing Roe v. Wade. She wrote in the Marquette Law Review article that abortion is “always immoral”; more recently she argued that Roe created a framework of “abortion on demand,” one that recognizes “no state interest in the life of the fetus.” The right has become so casual with this “life of the fetus” rhetoric that it might be easy to forget that it’s a religious belief, not a scientific one. Nor is it a legal one—unless we continue to allow conservatives to slide their theocracy into the law.
The overturning of a woman’s right to choose is where Barrett’s judicial philosophy, religiosity, and ability to inflame the culture wars all coalesce to make her the preferred conservative candidate to dismantle Ginsburg’s legacy. Conservative pundit and National Review editor Ramesh Ponnuru straight up said the quiet part out loud: “The main reason I favor Barrett, though, is the obvious one: She’s a woman…. If Roe v. Wade is ever overturned—as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution—it would be better if it were not done by only male justices, with every female justice in dissent.”
Since she’s been on the Seventh Circuit, Barrett hasn’t yet had an opportunity to rule on a woman’s right to choose. But she has put her moral fervor on display in a Second Amendment case. She dissented on originalist grounds from a ruling that Wisconsin could bar felons from owning guns—while noting there was a “founding-era” basis to take away voting rights. She wrote, “Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.”
In other words, if you’re a felon who would like your voting rights back, Barrett is telling you there are “virtue-based” reasons to deny you those rights and is using the language of originalism to do it.
Barrett should be in a seminary, not on the Seventh Circuit. She is what originalist fundamentalism looks like when you give it a law degree and a robe. You’re damn right I’m triggered.