Chemerinsky: Elections matter, from composition of federal bench to our highest court
Erwin Chemerinsky. (Photo by Jim Block)
In what might be one of the of the most consequential presidential campaigns in our lifetime, and maybe American history, remarkably little attention has been paid to judicial appointments. But the longest legacy of any presidency is the picks for the Supreme Court and the lower federal courts. History shows how much presidential elections matter.
The Supreme Court
Between 1960 and 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents. In this time, though, Republican presidents selected 15 Supreme Court justices, while Democratic presidents chose only eight.
Much of this was a result of the accidents of history as to when vacancies occurred. Richard Nixon selected four justices, while Ronald Reagan and Donald Trump each picked three. But no Democratic president since Harry Truman has selected more than two justices. Jimmy Carter had no vacancies to fill and President Joe Biden only one. By contrast, every Republican president during this time, except Gerald Ford, picked at least two justices.
Put another way, while Trump chose three justices in four years, the prior three Democratic presidents—Jimmy Carter, Bill Clinton and Barack Obama—served a combined 20 years in the White House but selected only four justices in those two decades.
It is easy to see how much presidential elections matter, for the Supreme Court, for constitutional law and for people’s lives, by imagining different outcomes. What if Hubert Humphrey had won the presidential election in 1968 rather than Nixon and Humphrey had been able to select four justices in his first two years in office? The liberalism of the Warren Court would have continued for decades.
The Burger Court, with four Nixon appointees, moved the law in a decidedly more conservative direction. If there is one case that exemplifies the consequences of the 1968 presidential election, it was San Antonio Independent School District v. Rodriguez (1973), in which the Supreme Court expressly rejected the claim that education is a fundamental right. Rodriguez involved a challenge to the Texas system of funding public schools largely through local property taxes. Texas’ financing system meant that poor areas had to tax at a high rate but had little to spend on education; wealthier areas could tax at low rates but still had much more to spend on education. For example, in San Antonio, one poorer district spent $356 per pupil while a wealthier district spent $594 per student.
The plaintiffs challenged this system on two grounds: It violated equal protection as impermissible wealth discrimination, and it denied the fundamental right to education. The court rejected the former argument by holding that poverty is not a suspect classification and that therefore discrimination against the poor only need meet rational basis review. As for the latter, the high court held that there is no right to education under the Constitution.
The decision was 5-4, with the four Nixon appointees, joined by Justice Potter Stewart, a Dwight Eisenhower appointee, in the majority. The court’s rejection of education as a fundamental right closed the door on claims of many other rights, especially rights to government services. And the court’s rejection of poverty as a suspect classification ended the Warren Court’s efforts at using the Constitution to advance economic justice.
The 2016 presidential election was similarly pivotal as to the composition of the court and the content of constitutional law. Since Trump’s three justices have joined the court, it has dramatically changed many areas of law. It overruled Roe v. Wade ending, after 49 years, a constitutional right to abortion. It has dramatically expanded gun rights and held that the only gun regulations allowed are those that existed historically. It has radically changed the law concerning the religion clauses, overruling the test that had been used for more than a half century for determining whether there is a violation of the establishment clause of the First Amendment. The court ended affirmative action by colleges and universities, effectively overruling many decisions over the last 45 years. The court for the first time held that a business has a First Amendment right to violate state antidiscrimination laws when it is engaged in expressive activity.
In addition, the court has fundamentally altered the administrative state by ruling that agencies cannot act on major questions of economic or political significance without clear congressional authorization, by overruling Chevron deference where courts defer to agencies’ interpretations of ambiguous statutes, and by holding that agencies cannot impose civil penalties. The court has broadly granted the president immunity from criminal prosecution for anything done carrying out the president’s constitutional or statutory duties.
It is striking that each of these decisions was 6–3 (although Chief Justice John Roberts only concurred in the judgment in overruling Roe), with the three Trump appointees in the majority. And each of these decisions moved the law in a much more conservative direction. They are entirely the product of the 2016 presidential election and Trump having been able to appoint three justices to the court. If Hillary Clinton had been elected in 2016 and if she instead had appointed the three justices, none of these cases would have been decided the same way.
Other presidential elections have been important, though not as pivotal for the composition of the court. If John McCain had defeated Obama in 2008 and selected two justices, the current court would likely have an 8-1 conservative majority rather than the current 6-3 split. On the other hand, if John Kerry had prevailed in 2004—and he would have won if he had carried Ohio—and he had replaced Chief Justice William Rehnquist and Justice Sandra Day O’Connor, there would be a 5-4 liberal majority today.
What is the likely effect of this presidential election? Of course, there can be unforeseen vacancies. But only three justices—Clarence Thomas (age 76), Samuel Alito (age 74) and Sonia Sotomayor (age 70)—are in their 70s. My prediction is that if Trump wins and there is a Republican Senate, Thomas and Alito will retire so that their seats can be taken by much younger conservatives. That would cement a conservative majority for decades to come as Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all in their 50s. Conversely, if Vice President Kamala Harris is elected president and there is a Democratic Senate, Sotomayor likely may retire and allow that seat to be filled by a liberal. Without a doubt, Trump and Harris would pick individuals with radically different ideologies for the high court.
Federal courts of appeals and district courts
In his four years as president, Trump picked 234 Article III judges: three Supreme Court justices, 54 judges for the United States courts of appeals, 174 judges for the United States district courts and three judges for the United States Court of International Trade. As of October 21, Biden has selected 213 Article III judges: one Supreme Court justice, 44 judges for the United States courts of appeals, 166 judges for the United States district courts and two judges for the United States Court of International Trade.
In contemplating the likely effects of this presidential election, it is notable how closely divided many circuits are between Democratic and Republican appointees. Overall, of the 179 courts of appeals judges, 89 were appointed by Republican presidents and 89 by Democratic presidents. Out of the 13 federal appeals courts, Democratic appointees have a majority on seven courts, whereas Republican appointees have a majority on six courts.
On the Second Circuit, there are seven Democratic appointees with active status and six Republican appointees. While on the Third Circuit, there are seven Republican appointees and six Democratic appointees. On the Sixth Circuit there are nine Republican appointees and seven Democratic appointees. The Seventh Circuit has six Republican appointees and five Democratic appointees. The 10th Circuit has five Republican appointees and seven Democratic appointees, while the 11th Circuit is the mirror image with seven Republican appointees and five Democratic appointees. It often is forgotten how closely divided the Ninth Circuit is with 13 Republican appointees and 16 Democratic appointees.
The reality is that overall, there is a great ideological difference between who Democratic and Republican presidents pick for federal judgeships. And it is irrefutable that Trump and Harris would pick vastly different people for the federal bench.
Conclusion
The coming presidential election will matter enormously for the composition of the Supreme Court and the federal judiciary. And its effects will last for decades.
See also:
What we know about Trump, Harris, and judicial nominations
Mike Davis trolls the left online. He could also help Trump pick MAGA judges
Conservative faction pushes judge nominees who are ‘even more bold and more conservative’
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and the forthcoming A Court Divided: October Term 2023 (November 2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
