On The Case

Trump appellate judges are paving the way to challenge precedent

(Reuters) - The month of September 2018 will undoubtedly go down in U.S. legal history for the rancorous furor over Brett Kavanaugh’s nomination to the U.S. Supreme Court, regardless of whether Kavanaugh, a judge on the District of Columbia U.S. Circuit Court of Appeals, is ultimately confirmed by the U.S. Senate. But in much quieter fashion, four judges whom President Trump appointed to federal appellate courts issued rulings in September that laid the groundwork for potentially momentous challenges to established precedent on such hot-button social issues as gun control, religious displays and zoning rights for religious groups.

Law professor Arthur Hellman of the University of Pittsburgh, a guru of the federal judiciary, spotted the trend when I interviewed him for a podcast that accompanies “Courting Change,” a Reuters interactive analysis of President Trump’s impact on the circuit courts. You’ve probably heard the marquee statistic that the president and his White House counsel – coordinating closely with Senate Republicans and elite conservative legal groups including the Federalist Society – have already placed 26 judges on federal circuit appellate courts. They’ve set a scalding pace. President Obama appointed 55 appellate judges, but it took him eight years. Trump has appointed nearly half as many in less than a quarter of that time.

The payoff for that relentless focus on appellate appointments has begun. “Trump appointees are showing themselves to be strong spokespeople for what is generally described as the conservative viewpoint,” Hellman told me Wednesday in a follow-up to our podcast. “New blood reopens old issues.”

The first notable instance of a Trump appointee challenging precedent came in July, when the 5th Circuit considered whether to rehear a three-judge panel’s decision upholding the federal ban on interstate gun sales. By a one-judge margin, the 5th Circuit voted not to hear the case, Mance v. Sessions en banc (896 F.3d 390). As the concurring opinion explained, the panel’s decision employed the same two-step analysis of gun restrictions that the 5th Circuit and nine other federal circuits have already used, in the wake of the Supreme Court’s landmark 2008 gun control decision in District of Columbia v. Heller (128 S.Ct.2783).

In a ringing dissent, Judge James Ho said courts have treated the Second Amendment as “a ‘second-class’ right.” He didn’t dispute the standard the 5th Circuit used to evaluate the interstate gun sale ban, but argued that the court’s analysis was wrong. He also seemed to invite attention from the Supreme Court, pointing out that at least three justices have also fretted in recent years about restrictions on Second Amendment rights. “Law-abiding Americans should not be conflated with dangerous criminals,” Ho wrote. “Constitutional rights must not give way to hoplophobia.”

In August, another judge Trump appointed to the 5th Circuit, former Texas Supreme Court Justice Don Willett, spoke up about qualified immunity, the doctrine that broadly insulates government officials from liability for the violation of plaintiffs’ constitutional rights. In Zadeh v. Robinson (2018 WL 4178304), Judge Willett agreed with two 5th Circuit colleagues that Supreme Court and 5th Circuit precedent shields the Texas Medical Board from liability for executing a warrantless search on the office and medical records of a physician under criminal investigation. But Willett called for “thoughtful reappraisal” of the “entrenched, judge-made doctrine of qualified immunity.”

The judge said the Supreme Court has been “untroubled by any one-sidedness” in the application of its qualified immunity precedent. But Willett said he and “a growing, cross-ideological chorus of jurists and scholars” believe it’s time for the justices to recalibrate the balance of interests between public officials and those who claim to have been wronged by them. (Lest you think qualified immunity is not an issue conservatives care about, Justice Clarence Thomas has noted his “growing concern” about the doctrine in 2017’s Ziglar v. Abbasi, 137 S.Ct. 1843.)

Last month, Trump appointees Kevin Newsom of the 11th Circuit and Amul Thapar of the 6th Circuit protested appellate precedent in cases involving religious expression. In Kondrat’yev v. City of Pensacola (2018 WL 4278667), Judge Newsom said that although he was bound by circuit precedent to concur in the judgment that Pensacola had to remove a 34-foot cross from its longstanding perch in a public park, that precedent is inconsistent with the Supreme Court’s Establishment Clause holdings and just plain “wrong.” (The judge notably conceded that the high court’s Establishment Clause jurisprudence is “to use a technical legal term of art, a hot mess.” He also called it “a wreck.”) Newsom called for the en banc 11th Circuit to reconsider its 35-year-old precedent disregarding “historical acceptance” in Establishment Clause cases. (The city filed a petition for Supreme Court review on Sept. 18.)

Judge Thapar used a dissent in Tree of Life Christian Schools v. City of Upper Arlington (2018 WL 4443591) to argue that the 6th and other circuits have failed to honor the text of a federal law passed to protect religious groups from discriminatory zoning regulations. The courts “have added requirements … that prevent many religious groups from seeking the shelter that Congress sought to provide,” he wrote. “Today, our circuit joins a host of others that have improperly written new demands into the statute’s ‘Equal Terms’ provision.”

All of these concurrences and dissents, Hellman said, are early signals that President Trump’s appointees are not going to be shy about criticizing precedent and calling for reconsideration, whether en banc within their own courts or at the Supreme Court. You can imagine, for example, the en banc 6th Circuit, where Republican-appointed judges are now firmly entrenched, looking at Judge Thapar’s dissent in the Christian school case to reevaluate its analysis of the anti-discriminatory zoning law. Or the Supreme Court taking to heart Judge Newsom’s description of its “hot mess” Establishment Clause precedent or Judge Willett’s “disquiet over the kudzu-like creep of the modern immunity regime.”

These are early days, as Hellman pointed out in our podcast discussion. President Trump’s appellate appointees are only beginning to issue opinions. And most of their decisions – like the vast majority of all federal appellate rulings – will be unremarkable holdings by unanimous three-judge panels. But in that context, four outspoken protests by Trump-appointed judges within the span of several weeks is all the more portentous.

President Trump and the conservative lawyers who backed him vowed to appoint judges who would enshrine their values. It’s beginning to look like those judges will make good on the president’s promises.