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What Happened When Trump Reshaped a Powerful Court

With the help of Senate Republicans, Donald Trump spent the first three years of his presidency remaking the federal judiciary in his own image. The president has appointed 133 district court judges, 50 appeals court judges, and two Supreme Court justices—meaning about one-fifth of the nation’s federal trial judges, and one-fourth of its federal appellate judges, are Trump appointees. These jurists are leading a conservative revolution that will upend decades of precedent and enshrine reactionary policies into the law. The transformation has only just begun. But for a glimpse of where the judiciary is heading if Trump wins a second term, Americans can look to the 5th U.S. Circuit Court of Appeals. A traditionally conservative bench, the court has been newly reshaped by Trump—and quickly got to work translating right-wing priorities into legal doctrine that will govern generations.

The 5th Circuit’s descent into lawlessness did not happen by accident. Senate Republicans would not let President Barack Obama fill several seats on the court, allowing Trump to reshape it after taking office. He appointed five of the court’s seventeen active judges, who immediately allied with the court’s existing far-right bloc, which includes extremists like Judges Jerry Smith and Edith Jones (appointed by Ronald Reagan) and Jennifer Walker Elrod (appointed by George W. Bush). There are now 11 GOP nominees on the court and just five Democratic nominees. (There’s also one vacancy, because some Republican senators deem Trump’s choice for the seat insufficiently militant.)

Trump didn’t flip the court—it already had a majority of GOP appointees—but he neutralized the influence of moderate conservatives. Judge Catharina Haynes, for instance, was appointed by George W. Bush but sat near the ideological center of the court. A trio of Reagan appointees—Judges E. Grady Jolly, Patrick Higginbotham, and W. Eugene Davis—leaned right but supported judicial restraint and adherence to precedent. Trump’s five appointees joined the axis of extremists like Smith, Jones, and Elrod in 2018. This year, we witnessed the results.

Like all federal appeals courts, the 5th Circuit first hears cases as a three-judge panel whose members are randomly selected; a majority of the court can then choose to rehear the case “en banc,” with every active judge sitting. Today, extremists are more likely to constitute a majority on three-judge panels, and they have an insurmountable majority when the court sits en banc.

In 2019, the conservative majority went on a rampage. In December, the court ruled that Obamacare’s individual mandate had become unconstitutional in an overtly partisan decision, and suggested that the rest of the law may have to fall, as well. Another appalling December ruling provides a good example of the 5th Circuit’s cruelty. The court granted immunity from civil suit to prison guards who locked an inmate in two filthy cells for six days. These cells, including the floor and the faucet, were covered in “massive amounts” of feces. The inmate, who was completely naked, was forced to sleep in feces and could not eat or drink because excrement contaminated everything. He sued the guards, who laughed and taunted him as he suffered, for subjecting him to cruel and unusual punishment in violation of the Eighth Amendment.

The 5th Circuit granted the guards immunity. In Smith’s opinion, the court held that an inmate’s right not to be locked in a feces-covered cell for six days was not “clearly established,” so the guards could not have known they were violating the Constitution. Smith added that, while future guards must avoid this precise form of torture, “we do not suggest” that “prison officials cannot require inmates to sleep naked on the floor. There can be any number of perfectly valid reasons for doing so.”

Read the full article at Slate.