For many decades, there was little evidence of partisan behavior in what can be the most bare-knuckled power play in the federal judicial system: when all the active judges on a federal appeals court reconsider the decisions of three-judge panels of their colleagues, a practice that lawyers call en banc review.
That changed in the Trump era, a new study has found.
“From 2018-2020 there was a dramatic and strongly statistically significant spike in both partisan splits and partisan reversals — more in both categories than we observed in any other time period over 60 years,” Neal Devins and Allison Orr Larsen, law professors at William & Mary, wrote in the study, called “Weaponizing En Banc,” to be published in The New York University Law Review.
By partisan splits, they meant full-court panels in which the judges appointed by presidents of one party almost perfectly diverged from those appointed by ones of the other party. Partisan reversals were what the term implies: ones in which an en banc majority dominated by appointees of presidents of the party in control of the court, over the dissents of most appointees of the minority party, overturned a three-judge panel dominated by appointees of the minority party.
Here is an example of both things. When the full U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled last year that a challenge to President Donald J. Trump’s business practices could move forward, the court split along partisan lines. All nine judges in the majority were originally nominated by Democratic presidents; all six judges in dissent were nominated by Republicans. The decision overturned a unanimous ruling from a three-judge panel of Republican appointees.
In dissent, Judge J. Harvie Wilkinson III lamented the majority’s ruling, writing that it had invited “the judiciary to assemble along partisan lines in suits that seek to enlist judges as partisan warriors in contradiction to the rule of law that is and should be our first devotion.”
In examining 950 en banc cases over 54 years, Professors Devins and Larsen wrote that they had expected to see very little evidence of these sorts of partisan splits or reversals in the 1960s and 1970s. That proved true. But they anticipated a steady rise in such behavior starting in the 1980s, as the Reagan administration turned its attention to stocking the federal courts with conservative judges. That proved wrong.
“Our data largely show stability and a lack of partisan en banc behavior from the end of the Reagan administration to the start of the Trump administration,” they wrote.
Professor Larsen said that was the good news. “We got a different answer than the one we expected,” she said. “En banc wasn’t used as a weapon for years and years and years.”
But the study also found what it called “a Trump-era uptick.”
“Almost 35 percent of en banc decisions in 2018-2020 involved either a partisan reversal or partisan split,” the professors wrote.
Grover Norquist was right when he said all they needed was a president who could hold a pen.
With the Trump cult getting more and more extreme this may swing back a bit as some right wing judges recognize that this is hurtling out of control and they have lifetime tenure. We’ll have to see. But no matter what, there are a ton of unqualified far-right operatives sitting on the federal bench. They will likely stick with program. It’s what they were hired to do.