It’s been a little over a month since the Supreme Court justices hung up their robes for the summer, leaving behind a trail of destruction of LGBTQ rights, affirmative action and environmental protection.
The Roberts Court is often called the most conservative in decades. And if you can’t imagine it getting worse, picture this: a court with Sen. Ted Cruz (R-Texas) on the bench. Or Sen. Mike Lee (R-Utah), a major player in the scheme to overturn Donald Trump’s 2020 loss and proponent of Sidney Powell’s conspiracy theories. Or John Bush, a Trump-appointed judge who once compared abortion to slavery, calling them “the two greatest tragedies in our country.”
As the Republican primary season heats up, those are some of the names that the ultraconservative candidate Vivek Ramaswamy floated a few days ago as possible picks for the Supreme Court. Granted, Ramaswamy is pretty far behind, so he might not get his wish.
But he’s not alone in signaling that Republican candidates will try to outdo each other with promises to push federal courts even further to the right. Gov. Ron DeSantis (R-Fla.) has complained that Donald Trump’s judicial nominees were nowhere near conservative enough. That’s amazing, considering the people Trump put on the bench.
It’s a roster that includes not just Supreme Court justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett but also U.S. District Judge Matthew Kacsmaryk, who single-handedly upended access to the FDA-approved abortion drug mifepristone. Also judges like the Sixth Circuit’s Chad Readler, who repeatedly votes against holding police accountable for brutality. And Britt Grant on the 11th Circuit, who struck down laws protecting LGBTQ young people from the horrible abuse called “conversion therapy.”
And there are scores of other equally hardcore Trump judges who stand out for records that scholars say are both notably political and detrimental in areas that include civil rights, workers’ rights and economic regulations.
Now, contrast that with what has been happening in courtrooms under Biden judges as they increase their numbers on the federal bench. Probably the best-known ruling by one of these judges was by Judge Florence Pan on the U.S. Court of Appeals for the D.C. Circuit, when she reversed a Trump district judge and ruled that Jan. 6 rioters can be prosecuted for “obstruction of official proceedings.” That decision (over the dissent of another Trump judge) could also allow Donald Trump to be prosecuted on that basis for the events of that day.
Meanwhile, one by one and often under the radar, Biden judges are making the kinds of rulings that are good for ordinary people: workers, students, consumers and patients. People who need justice because wealthy and powerful institutions are trying to take advantage of them. People who don’t have a lot of money, or a lot of clout, but are trying to survive and do the right thing.
People like Brian Xiong, who was the director of affirmative action at the University of Wisconsin when he started to get concerned about hiring in the HR department. He told his boss that he believed there was discrimination in both hiring and promotion and that he was worried the university could be sued. The boss decided to fire him the next day.
Xiong went to court, but it ruled for the university without even scheduling a trial. When Xiong appealed, it was a Biden judge, Judge Candace Jackson-Akiwumi of the Seventh Circuit Court of Appeals, who cast the deciding vote that gave this whistleblower a chance to have his day in court.
In another case, a Biden judge overturned a Trump judge ruling that would have deprived a little boy with disabilities of the help he needed to stay in school. A psychologist determined that the boy could attend classes if a therapist accompanied him. But when his parents asked the school to allow it, it repeatedly said no.
A Trump judge dismissed the family’s discrimination case, insisting they had to jump through many additional hoops. Fortunately, Fourth Circut Court of Appeals Judge Toby Heytens disagreed; his reversal of the Trump judge paved the way for this family and many others to pursue the help their kids need.
There are many things to consider when we vote for president, and in 2024 this needs to be one of them:
Do you want someone who will appoint more judges to defend the rights of real people or more judges who say it’s okay for businesses to discriminate against LGBTQ people, that it’s fine to gut the Clean Water Act so developers and polluters can have their way, and that people have no right to make even lifesaving decisions about their own pregnancies (and make no mistake, Republicans really, really want a national abortion ban)?
Republican candidates are telling us what they’ll do to the courts if they get another chance. We should believe them.
Svante Myrick is the president of People For the American Way.