The Court Where the Rule of Law Still Lives—for Now

Waking up on November 6, Americans found that the political status quo had once again been upset, thanks to the reelection of Donald Trump. In winning both the popular and electoral votes, Trump, the first convicted felon to be elected president, had defied political odds and the judicial system. In the days that followed, political commentators took stock of the tectonic shifts, prophesying that a second Trump term would be dramatically more polarizing. With Republicans in control of both houses of Congress, the balance of power in the federal government is tipped in their favor. The only remaining question is how the judiciary will respond to a new Republican agenda.

It seems ironic that, in a system that has failed to uphold justice by allowing Donald Trump to run for president after being convicted of crimes, any hope would remain in the judicial system to resist encroachments on others’ liberties. Yet for many liberals hoping to maintain a check on Trump’s policies, it may be their best chance.

The Supreme Court is dominated by a conservative majority thanks to Trump’s appointments. It was this court’s majority that enabled Trump’s reelection by granting him extensive immunity for crimes committed while in office. At the federal circuit court level, however, the question of legal influence is much less predictable. Although Trump appointed dozens of judges to the benches of the federal courts, the various circuit courts of the United States remain ideologically diverse.

Perhaps the most notable case of a federal circuit court making consistent challenges to the Trump agenda is the Ninth Circuit Court of Appeals. As the largest federal appellate court, with over 29 active judges, the Ninth Circuit holds significant influence over federal policy and has played a crucial role in major court cases dating back to the early twentieth century.

With a jurisdiction over the West Coast states of California, Washington, Oregon, Montana, Idaho, Arizona, Alaska, and Hawaii—20 percent of the total population—and headquartered in San Francisco, the Ninth Circuit’s geographical location has led conservative media to characterize the court as left-leaning, like the city where it is based.

The media’s portrayals of the Ninth Circuit Court as a liberal institution are not totally unfounded. The liberal traditions of the Ninth Circuit go back long before our current political moment. In fact, the Ninth Circuit has a long liberal history since it was created by Congress in 1891. Over the course of many decades, it has issued dozens of landmark rulings on issues regarding civil liberties, free speech, and desegregation.

The liberal trend on the court can be traced to the mid-twentieth century. Among the individuals who defined the court then was Justice William Denman, who sat on the court from the 1930s to the 1950s and presided over it as chief justice from 1948 to 1957. Denman was a member of the San Francisco political elite; his father was a San Francisco city supervisor and the father of San Francisco’s public school system. A distant relative of San Francisco Mayor James Phelan, Denman spent his early political career as a Democratic official in the Wilson administration.

Denman later became a close political and social friend of Franklin Roosevelt, who appointed him to the bench of the Ninth Circuit in 1935. In 1937, Denman advised Roosevelt in his unsuccessful campaign to expand the Supreme Court—later derided as his court-packing scheme.

Perhaps Denman’s greatest historical contributions to the court were his consequential rulings on civil rights issues. In May 1943, Denman and his fellow judges ruled on the case of Korematsu v. United States and Endo v. United States—two cases challenging the government’s decision to incarcerate Japanese Americans during World War II. Denman at times clashed with his colleagues; when his colleagues chose to send an earlier case, Hirabayashi v. United States, to the Supreme Court instead of issuing a ruling, Denman declared it to be the “deportation of 70,000 of our citizens without hearing.”

In the case of Korematsu, Denman accused his colleagues, who upheld Fred Korematsu’s conviction, of again ignoring the due process issue at the heart of the case. When Mitsuye Endo’s case came forward as another challenge to the incarceration policy, Denman directly assisted Endo’s attorney James Purcell with certifying the case to the Supreme Court. In the end, the Supreme Court upheld the legality of the incarceration in Korematsu’s case. Its ruling in Endo’s case, however, had the immediate effect of ending the policy by allowing Japanese Americans to return to the West Coast.

In the postwar period, the judges on the Ninth Circuit tackled desegregation on the West Coast. Following the end of Japanese American incarceration, Denman and several judges ruled in favor of a set of Japanese American plaintiffs who petitioned to regain their citizenship. In April 1947, the judges of the Ninth Circuit ruled in Westminster v. Mendez that California schools could not target Mexican American students for segregation. Although Mexican Americans at the time were labeled as white and the parties in the case stipulated that racial discrimination was not at issue, the ruling in Westminster v. Mendez was among the first desegregation cases of the civil rights era.

In the ensuing decades, the Ninth Circuit garnered criticism from conservatives for its progressive rulings regarding abortion rights and gun control.

Yet legal scholars have debated the extent to which the court is actually “liberal.” Writing in 2003, at the time of the Ninth Circuit’s challenges against the Bush administration’s counterterrorism policies, University of California, Berkeley, Law School Dean Erwin Chemerinsky argued that the liberalism of the Ninth Circuit Court was largely a myth. Chemerinsky discovered that during the early years of George W. Bush’s presidency, the Supreme Court’s reversal rate of Ninth Circuit Court rulings was no different from that for any other circuit court in the country. He underlined the fact that the court, while at times engaged in legal scuffles with conservative presidents, was at least as ideologically diverse as other courts.

A decade later, during the first Trump administration, legal scholars again directed their attention to the Ninth Circuit’s political orientation as it battled the Trump administration on some of its hallmark policies, most notably in the Ninth Circuit’s block of Trump’s infamous Muslim ban. University of Pittsburgh law professor Arthur Hellman conducted his own study of the Ninth’s judicial record in relation to presidential administrations.

Studying rulings from between 1998 and 2020, Hellman concluded that the Ninth Circuit was indeed a “liberal” court as described by the press but was most often selectively liberal in its rulings. The Ninth Circuit’s en banc procedure requires 11 judges to preside over hearings, and this allows for some occasions where the court may have a conservative majority. In fact, Hellman stated that the Ninth’s en banc system often checked more liberal voices on the court. “On the contrary,” Hellman surmised, “the study shows that it was not uncommon for liberal icons like Judge Reinhard and Judge Pregerson to find themselves on the losing side of en banc votes.”

The perceived liberalism of the Ninth Circuit made it a target of Donald Trump. At the beginning of his first term, the Ninth Circuit blocked several executive orders, enraging Trump. Politico previously reported that Trump mentioned in personal conversations with aides that he wanted to break up the Ninth Circuit Court altogether.

As with the Supreme Court, Trump sought to neutralize the Ninth Circuit by appointing new judges to its bench. Often members of the Federalist Society, the Trump-era appointees of the Ninth Circuit have a similar political line with the Republican Party. Avalon Zoppo of The National Law Journal reports that while the majority of judges on the court can be considered liberal, Trump raised the number of conservative judges on the bench to 13 during his term.

Among the most vocal of Trump’s appointees currently on the bench is Lawrence VanDyke, a former solicitor general of Nevada and Montana. ProPublica discovered that, much like many other Trump appointees, VanDyke was mentored by Trump’s legal adviser, Federalist Society founder Leonard Leo. VanDyke has frequently complained that his fellow jurists have played “dirty” regarding their rulings on immigration cases. The appointments of these new judges led Los Angeles Times reporter Maura Dolan to conclude in 2020 that Trump had effectively “flipped” the Ninth Circuit.

The question of how the court will survive under a second Trump term remains uncertain. Currently, nine of the 23 senior judges were appointed by Republican presidents dating back to the Nixon administration, while the remaining 14 were appointed by Democratic presidents going back to the Carter administration. All of the current 29 authorized active judgeships in the Ninth Circuit Court are filled. Erwin Chemerinsky explained to the Los Angeles Times that despite President Joe Biden’s efforts to strengthen the liberal branch of the Ninth Circuit by appointing new judges, the state of the court remains more ideologically divided than during the beginning of Trump’s first administration.

However, legal pundits have begun to look to the Ninth Circuit as a potential guardrail to a new Trump administration. Despite Trump’s appointments, the majority of the judges on the bench are liberal. In fact, several recent rulings by the Ninth Circuit have angered some Trump appointees on the bench. Since the end of Trump’s first term, the Ninth Circuit Court has taken a liberal stance on hot-button issues, such as gun control and immigration. On December 1, 2021, the Ninth Circuit upheld a California law banning high-capacity magazines over 10 rounds, overturning Judge Roger Benitez’s ruling to strike down the ban (Benitez has become a saint for Second Amendment advocates because of his pro-gun track record). As Hellman noted in his aforementioned article, the Ninth Circuit has articulated a particularly liberal vision when it comes to gun control.

Where the Ninth Circuit may face its greatest challenge, however, will be from the Supreme Court, which has reversed several of its landmark decisions. It was the high court that overturned the Ninth Circuit’s block on the Muslim ban in Trump v. Hawaii. More recently, in June 2024, the Supreme Court famously overturned the Ninth Circuit’s ruling in Grants Pass v. Johnson, clearing the way for state and city officials across the country to enforce laws restricting homeless encampments on public sidewalks. The Supreme Court at the same time ended the Ninth Circuit’s block on Idaho’s abortion ban.

The nature of the courts has led political activists to strategize their lawsuits by judge  shopping, or picking legal venues with a specific political leaning to improve their odds in court. In the case of the U.S. District Court of Northern California, 23 of the 25 judges are liberal-leaning. Conversely, conservatives have looked to the Fifth Circuit Court of Appeals for favorable challenges against the policies of the Biden administration, such as student loan forgiveness.

U.C. Davis law professor Gabriel Jack Chin argues that despite having appointed fewer judges than Trump to the Ninth’s bench, Biden made some gains in instilling a liberal spirit to the court. “President Biden seems to have gotten at least a little religion about the importance of the judiciary.” When I asked Chin about the future of the court under a new Trump administration, he suggested that the power of circuit courts may wane as the Supreme Court begins to diminish the influence of moderate circuit judges in the Ninth Circuit and elsewhere. “Of course, the Supreme Court cannot police every routine decision panel decision, but they can and do set firm parameters.”

Alternatively, Trump may ask Congress to pass legislation to reorganize the Ninth Circuit to consolidate power among its conservative judges. Although breaking up the Ninth Circuit would be unprecedented, many of Trump’s announced policies involve breaking centuries-old institutions. Even in this case, though, a restructuring of the court would not eliminate the liberal majority on the bench. For now, Democrats hoping to stymie any major initiatives by Trump, such as his proposed deportation scheme, may retain hope that the Ninth Circuit can provide some guardrails, even if flimsier than those before 2016.