The most dangerous conservative judges aren’t on the Supreme Court

The most dangerous conservative judges aren’t on the Supreme Court

Tony Spell, pastor of the Life Tabernacle Church of Central City, La., waits outside the U.S. Court of Appeals for the 5th Circuit, in New Orleans on June 7. Louisiana's state Supreme Court has agreed to hear Spell's appeal of a criminal case against him for violating coronavirus restrictions. (Gerald Herbert/AP)

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By Perry Bacon Jr.

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The Republican-appointed judges serving on state courts and lower-level federal courts don’t get nearly as much attention as those on the U.S. Supreme Court. But those judges are some of the most important — and, unfortunately, most dangerous — figures in American politics. Limiting the radicalism of the current Republican Party will be difficult with a judiciary packed with GOP partisans writing Trumpism into law.

Republican-appointed justices on the Supreme Court have been aggressively pushing the legal system to the right for some time — and now seem poised to take even bolder steps, most notably reversing or severely weakening Roe v. Wade. The willingness of those now-six justices to align themselves so tightly with Republican Party political goals is hugely important, because the Supreme Court determines national law and creates precedents that lower courts must follow. That said, the high court issues relatively few rulings each year. Most issues get resolved in state-level courts or at the federal district or circuit court level.

Recognizing the importance of those lower courts, Republican officials and groups have long pushed to make them as conservative as they can, similar to GOP efforts to shape the Supreme Court. President Donald Trump in particular prioritized picking people who were deeply ideological and committed to GOP goals. Republican governors are now stacking courts at the state level with people aligned with the Federalist Society, the conservative organization that has played such a big role in moving the judiciary to the right at the federal level. “Republican governors have been very focused on getting conservative judges in place,” said Billy Corriher, founder of a newsletter called The Supreme Courts that focuses on high courts at the state level.

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All of that work by Republicans to shape the legal system is paying off. These lower-level judges have effectively become a Republican super-legislature, blunting the policies of Democratic mayors, governors and presidents while largely upholding the moves of Republican officials.

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It’s not surprising that judges who lean conservative would issue rulings that align more closely with the GOP — and liberal judges tend to be more aligned with the Democratic Party. But lining up with today’s GOP means judges taking radical and at times anti-democratic actions. And while it’s not clear whether this is intentional, the Republican-appointed judges now have a two-step maneuver available to them to move U.S. law to the right without much public blowback. A lower-court Republican-appointed judge can issue an ultra-conservative ruling, and the U.S. Supreme Court can decline to step in to reverse it, moving the law to the right without the conservatives on the high court having to write a lengthy opinion that would get a lot of news coverage. For example: With the Supreme Court’s acquiescence, GOP-appointed federal district and circuit court judges are essentially forcing the Biden administration to implement the former president’s hard-line immigration policies.

Three trends emanating from lower-court Republican judges are particularly worrisome.

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First, they are validating the Republican Party’s project to win elections in part through anti-democratic means such as aggressive gerrymandering and voting restrictions. One of the key roles of judges should be to protect individual rights, particularly the fundamental right to vote. But conservatives on Wisconsin’s state Supreme Court have upheld the state’s egregious gerrymandering of state legislative districts, while Florida’s conservative-dominated Supreme Court and GOP-appointed federal judges in the South blessed legislation adopted by Florida Republicans that makes it much harder for ex-felons to get their voting rights restored.

Second, judges are acting in blatantly partisan ways. Initiatives enacted by Democrats at all levels are now vulnerable to GOP-appointed judges striking them down on the thinnest of pretexts. The Supreme Court has been forced to issue rulings in support of Obamacare several times because lower-level, Republican-appointed judges attempted to overturn the law with rulings that didn’t make any sense unless understood as desperate attempts to do what GOP politicians could not — kill off the law. These judges are micromanaging President Biden’s immigration policies and trying to block him from using vaccination mandates to stop the spread of covid-19.

Third, these judges are deeply committed to the notion of “reverse racism” — that initiatives intended to address racial disparities violate the rights of White Americans. Earlier this year, a conservative judge halted a Biden administration program designed to give aid to minority farmers, who had been disproportionately left out of previous federal programs. Another GOP-appointed judge blocked a program designed to help minority and female-led small businesses. It will be impossible for the United States to address its racial disparities if policies that take on those issues directly run into a wall of conservative judges.

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It is important to note that many Republican-appointed judges did, to their credit, refuse to rule in Trump’s favor last year when his campaign filed numerous frivolous claims alleging voter irregularities. But we should not be comforted by those rulings. Many of these judges have shown their true ultra-partisan colors in 2021.

In their book “How Democracies Die,” scholars Steven Levitsky and Daniel Ziblatt argue that one major way radical parties and leaders erode democratic governments is by capturing the judiciary and other ostensibly neutral institutions (such as the media). This is happening to America’s judicial branch right now. Any effort to strengthen America’s democracy must deal with these radicalized lower-level, GOP-appointed judges.