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Constitutional Law

Judge finds probable cause to hold US in contempt; is Trump administration ‘at the cusp of outright defiance’?

By Debra Cassens Weiss

April 16, 2025, 3:53 pm CDT

A federal judge who banned the Trump administration from removing Venezuelan immigrants from the United States ruled Wednesday that there is probable cause to find the government in criminal contempt for willfully disobeying his directive.

The federal government transferred the deportees to a prison in El Salvador in Central America hours after he issued an injunction, the judge said, and officials’ boasts implied that it was done “deliberately and gleefully.”

Chief U.S. District Judge James E. Boasberg of the District of Columbia said he would give the Trump administration a chance to purge itself of contempt, and if the government doesn’t act, he would identify the people responsible for noncompliance. The final step would be a contempt prosecution, possibly by an appointed prosecutor.

CNN, the Washington Post, Law360 and the New York Times are among the publications with coverage of Boasberg’s April 16 order.

Boasberg ruled a day after U.S. District Judge Paula Xinis of Maryland ordered the administration to provide answers about why it apparently failed to “facilitate” the release of an immigrant mistakenly sent to the El Salvadoran prison, as ordered by the U.S. Supreme Court on April 10.

The government’s clashes with Boasberg and Xinis have led to the government’s arrival “at the cusp of outright defiance,” the New York Times reports in a separate article. Other examples of the administration’s defiant stance include its freezing of funds that have been ordered released and its refusal to allow the Associated Press to participate in the press pool, despite a federal judge’s decision requiring access.

Elora Mukherjee, a professor at Columbia Law School, told Courthouse News Service that the executive branch “is intent on pushing the bounds of its authority as far as possible and now beyond the breaking point of our constitutional democracy.”

In the case before Xinis, the government has argued that facilitating the return of the immigrant, Kilmar Armando Abrego Garcia, means only that it must “remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”

The government argument “does not pass the laugh test,” Michael Dorf, a professor at Cornell Law SchooL, told the New York Times.

The New York Times concludes that defiance may not be in the form of an outright refusal to follow a judge’s order.

“It may be an appearance by a hapless lawyer who has or claims to have no information. Or it may be a legal argument so outlandish as to amount to insolence,” the article says.

Boasberg initiated contempt proceedings, even though the Supreme Court ruled April 7 that the case had been filed in the wrong venue. The Supreme Court said the immigrants could only challenge their deportation under the Alien Enemies Act of 1798 through a habeas action, which must be brought in the district in which they are confined.

Boasberg said the Supreme Court decision, which lifted his temporary restraining order preventing the deportations, “does not excuse the government’s violation.”

Every judicial order must be obeyed until it is reversed, he said.

“If a party chooses to disobey the order—rather than wait for it to be reversed through the judicial process—such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order,” Boasberg wrote.

Boasberg said the government could purge itself of contempt by giving the deportees sent to El Salvador a chance to challenge their removal in a habeas proceeding by asserting custody over them. The government would not have to release people or bring them back to assert custody.

If the government does not purge itself of contempt, Boasberg will require declarations and possibly testimony, he said. The next step, if needed, would be to seek a contempt prosecution by the Department of Justice, and, if that is declined, to appoint another prosecutor.

The Trump administration planned to seek “immediate appellate relief” from Boasberg’s ruling, according to the New York Times.

The case is J.G.G. v. Trump.

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3. DOJ nominees hedge on whether court orders…

Constitutional Law

DOJ nominees hedge on whether court orders must always be followed

By Debra Cassens Weiss

February 27, 2025, 3:24 pm CST

Two Department of Justice nominees refused to say whether court orders must always be followed during questioning before the Senate Judiciary Committee on Wednesday.

D. John Sauer, the U.S. solicitor general nominee, said, “Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” Law.com reports.

But Sauer also said “some historians might think we’d be better off” if the 1944 U.S. Supreme Court decision Korematsu v. United States had not been followed. Korematsu upheld an executive order calling for the imprisonment of Japanese Americans during World War II.

In any event, Sauer said, the idea that President Donald Trump would defy a court order is “not a plausible scenario.”

Sauer is a former Missouri solicitor general who clerked for the late Justice Antonin Scalia. He successfully represented Trump before the Supreme Court in the 2020 election-interference case against him. The July 2024 decision held that presidents have “absolute immunity” from criminal prosecution when exercising core constitutional powers.

Other publications with Senate Judiciary Committee coverage include Bloomberg Law, Law360, the Washington Post and Politico.

Aaron Reitz, nominated to lead the DOJ’s Office of Legal Policy, told senators that it would be “too hypothetical” to comment on whether litigants can defy court orders based on a moral disagreement. Reitz is currently the chief of staff for Republican U.S. Sen. Ted Cruz of Texas.

The Washington Post highlighted two other answers given by Reitz.

The first: “There is no hard and fast rule in all instances in which a litigant must comply with all or some or various parts of a judicial decision,” Reitz said. “It is so fact-, law- and case-specific that one cannot speak generally.”

The second: “My position reflects a fairly mainstream view within right-of-center jurisprudential circles, which is simply to suggest that various Supreme Court or Court of Appeals decisions are more limited in scope than maybe our friends who share a different jurisprudential view of Supreme Court holdings would suggest.”

During the hearing, Reitz was asked about his post on X, formerly known as Twitter, after a federal judge blocked a Texas abortion ban enacted during the COVID-19 pandemic.

Reitz wrote that the judge “has made his decision. Now let him enforce it.” The social media post echoed an “apocryphal quote attributed to Andrew Jackson in response to a much earlier court ruling,” according to the Washington Post.

According to Law360, Reitz said the social media post reflects “a conservative view of Article III and the role of courts and their ability to bind parties that are not litigants to the case before it.”

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3. Judge texted bailiff, clerk that he can’t…

Criminal Justice

Judge texted bailiff, clerk that he can’t be in court next day because ‘I just shot my wife,’ jurors are told

By Debra Cassens Weiss

February 20, 2025, 12:32 pm CST

A California judge admitted that he shot his wife in a text to court personnel, in a police car and when sitting alone in a police interrogation room, jurors were told Wednesday.

Judge Jeffrey Ferguson of the Orange County Superior Court in California is accused of fatally shooting his wife in August 2023 while watching the AMC TV show Breaking Bad at their home and arguing about finances. Their adult son was also present.

Law360, the Associated Press and KABC have coverage.

Ferguson’s defense lawyer maintains that the shooting was an accident, according to the AP.

Orange County, California, Deputy District Attorney Seton Hunt showed jurors a copy of a text to Ferguson’s clerk and bailiff, the articles report.

“I just lost it. I just shot my wife. I won’t be in tomorrow. I will be in custody. I’m so sorry,” the text said.

Jurors were also shown a video of Ferguson muttering to himself in a police interrogation room, according to Law360.

“I killed her. Ladies and gentlemen of the jury, convict my ass. I did it,” he said.

In the back of the police car, Ferguson said, “I killed my wife. F- – -. Ugh, s- – -,” video showed.

At the police station, Ferguson’s blood alcohol level was 0.065. Hunt said a forensic scientist would testify that the level was likely 0.17 or more when Ferguson’s wife, Sheryl, was shot.

The adult son testified that he had stepped outside as his parents argued and heard his mother say words to the effect, “Why don’t you point a real gun at me?” The son said he turned around and saw his father fire the gun, according to Law360.

Hunt is seeking a second-degree murder conviction, according to KABC. It’s unclear whether jurors will also be able to consider a manslaughter charge.

See also:

Criminal court judge, 72, arrested in wife’s shooting death

Judge who made ‘reckless’ Facebook allegation about prosecutor is admonished

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3. Could courts run out of options if federal…

Judiciary

Could courts run out of options if federal officials defy court orders?

By Debra Cassens Weiss

February 20, 2025, 2:56 pm CST

The question was considered during President Donald Trump’s first term in office: What would happen if his administration ignored a court order? Now, news articles are considering the issue once again, and commentators are using the term “constitutional crisis” to describe worst-case scenarios.

One federal judge in Rhode Island already ruled Feb. 10 that the Trump administration partly failed to comply with a temporary restraining order to lift a freeze on some federal funds.

Then on Feb. 19, plaintiffs in another case sought to hold several administration officials in contempt for alleged “brazen defiance” of a Washington, D.C., federal judge’s TRO requiring continued funding of many foreign-aid programs.

How can courts respond? Among those considering the enforcement issue are Trevor W. Morrison and Richard H. Pildes, professors at the New York University School of Law, in a guest essay for the New York Times, Bloomberg Law, NPR and the Brennan Center for Justice at the NYU School of Law.

Court orders are usually directed at subordinate officials, rather than a president. If the officials don’t comply, “the courts would be likely to issue further orders, with increasingly strict and specific requirements, such as a due date,” according to the guest essay.

Then there are these additional options, according to the articles:

  • Sanction the lawyers. Courts can sanction lawyers who help clients deliberately defy a court order, who file court documents for an improper purpose or who make misrepresentations to a court.

  • Order government officials to answer questions in depositions.

  • Hold administration officials in civil contempt of court. The officials and their agencies could be fined daily until they comply with a court order. Judges could also impose sanctions affecting the underlying litigation. And courts could require imprisonment until an order is followed. The problem is that the U.S. Marshals Service would likely be responsible for imprisoning the official—and the service is overseen by the Department of Justice, which could order noncompliance.

  • Hold officials in criminal contempt and refer the issue to a U.S. attorney for prosecution. Trump could direct the federal prosecutor to drop the case, however. If a judge was to instead appoint private counsel to prosecute, Trump could issue a pardon after a conviction.

“Executive branch defiance of the courts is not a simple, one-time-only decision,” Morrison and Pildes wrote in the New York Times guest essay.

Continued defiance could mean expanding the circle of federal officials who violate the law, including U.S. marshals. The confrontation could eventually reach the U.S. Supreme Court.

“For an official to stand in continued, open defiance of a court order, he might have to defy the entire judicial system,” Morrison and Pildes wrote. “At that point, there is no question we would be in a constitutional crisis, and the courts could well run out of options.”

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3. Judge gave ‘reasonable impression’ she was…

Judiciary

Judge gave ‘reasonable impression’ she was letting immigrant evade ICE, ethics charges say

By Debra Cassens Weiss

December 5, 2024, 12:52 pm CST

A Massachusetts judge who allegedly gave a “reasonable impression” that she was allowing an immigrant to evade federal custody was “less than fully candid” when asked about the incident, according to an ethics complaint filed Monday.

The judge, Judge Shelley M. Richmond Joseph of Massachusetts, is accused of willful misconduct in the ethics complaint.

Boston.com, Reuters, the Daily Mail and Massachusetts Lawyers Weekly have coverage.

Joseph maintains, however, that she was not aware of a plan to let Jose Medina-Perez escape custody, and she was cooperative and truthful in the investigation by supervisors and disciplinary authorities. She “committed no misconduct and certainly no willful judicial misconduct,” her lawyers said in the written response to the charges.

“Judge Joseph looks forward to a hearing where all the circumstances finally become public,” said Thomas Hoopes, her lawyer, in a statement published by Reuters.

Joseph had once faced federal charges of conspiracy to obstruct justice over the April 2018 incident in the Newton, Massachusetts, courthouse.

Prosecutors had alleged that Joseph allowed Medina-Perez to go downstairs to the lockup, supposedly to retrieve property. The immigrant was then allowed to leave through a back door by a court officer. The charges were dropped in September 2022 after Joseph agreed to report herself to the Massachusetts Commission on Judicial Conduct.

The ethics complaint recounted the alleged sequence of events.

Medina-Perez was in court on a Pennsylvania warrant and two controlled-substance violations. A U.S. Immigration and Customs Enforcement agent was in the courtroom, and Joseph asked him to wait outside in accord with district court policy. At some point before a reconvened hearing, the defense attorney “formulated a plan with the court officer” to avoid ICE agents in which Medina-Perez would be returned to the lockup and let out of a door by the court officer.

The prosecutor later advised Joseph and the defense attorney that she no longer thought that Medina-Perez was the subject of the Pennsylvania warrant, and she would not seek bail on the misdemeanor charges. During a recorded sidebar conference, the defense lawyer said, “ICE is going to pick him up if he walks out the front door. But I think the best thing for us to do is to clear the fugitive issue, release him on a personal, … and hope that we can avoid ICE.”

Joseph allegedy replied, “The other alternative is if you need more time to figure this out—hold until tomorrow.” The defense lawyer responded that ICE would pick up Medina-Perez if he was bailed out. Joseph allegedly responded, “ICE is gonna get him?” and, “What if we detain him?”

The defense lawyer then asked whether the sidebar conference was on the record. Joseph directed the court clerk to turn off the recording equipment. The unrecorded remarks lasted 52 seconds.

Joseph’s recorded statements “would give a reasonable observer the impression that she sought to assist defense counsel in identifying a means for the defendant to avoid ICE,” the ethics complaint says. “Judge Joseph’s willingness to conduct an unrecorded sidebar conversation with counsel, in violation of [a district court rule], added to the basis for that impression.”

The defense lawyer allegedly asked Joseph in the unrecorded conference to allow him to accompany Medina-Perez to return to the lockup area after he was released from state custody. The defense lawyer also allegedly said Medina-Perez could be released through a rear door, according to the ethics complaint. Joseph allegedly agreed to the request with the knowledge that ICE agents were waiting in a different area of the courthouse.

When the recorder was turned back on, the defense lawyer said he thought that the defendant had property downstairs, and he would like to speak with him with an interpreter. “That’s fine. Of course,” Joseph said. After their arrival downstairs, the court officer released the defendant from the rear door, unbeknownst to the ICE agent.

Joseph failed to disclose the unrecorded session to the first justice of the Newton District Court, and when asked about it by a regional administrative judge, she said her unfamiliarity with courtroom equipment may have caused a portion of the hearing not to be recorded, the ethics complaint said.

She mentioned an experience in another courtroom in which she disconnected the recording system after learning that it was amplifying a sidebar conversation. In a conversation with the chief justice of the district court, she denied having anything to do with the defendant’s release.

In her response, Joseph denied that the defense lawyer told her of a plan to release the defendant through the rear door. In addition, she had no knowledge where the ICE agents were waiting outside the courtroom, the response said.

In her response, Joseph said she suggested detaining Medina-Perez to give the defense lawyer time to investigate his belief that ICE had issued a detainer for the wrong person. Because prosecutors were not seeking bail, she thought that the defendant would be released to ICE after his lawyer spoke with him, she said.

As for the unrecorded sidebar, her experiences as a practicing lawyer “led her to believe that this was an occurrence with no sinister meaning,” her response said.

Joseph was suspended in April 2019 as a result of the federal indictment but was reinstated after the federal charges were dropped in 2022, according to Boston.com. She is currently a judge for the Boston Municipal Court.

Ari Kaplan recently spoke with Greg Hong, the co-founder and CEO of Steno, a tech-enabled provider of legal support and court reporting services.

They discussed the industry trends driving the need for court reporting and litigation support, creating a competitive advantage in the current market, and the evolution of the legal support market.

Ari Kaplan: Tell us about your background and the genesis of Steno.

Greg Hong: I’ve participated in several two-sided marketplaces. Out of school, I traded stock for hedge funds and went pretty far down the finance path before realizing I’d rather be building businesses than valuing them. From there, I worked in ad tech and ran a restaurant technology company that directly competed with OpenTable. I ultimately sold that business to Resy and American Express. We had some litigation in that sale, and my co-founder at Steno, Dylan Ruga, represented us successfully. We won that case on summary judgment, but I had my deposition taken, so he and I became good friends. Afterward, he proposed starting a court reporting business with me and a third co-founder, Dan Anderson, now our chief technology officer, when we saw an opportunity to add unique technology to a legacy agency model and structure it more like a marketplace.

Ari Kaplan: What trends in the legal industry do you see driving the need for court reporting and litigation services?

Greg Hong: The volume of litigation continues to grow year over year, but the court reporting industry has become a commoditized service market, and our competitors use decades-old playbooks. We are focused on our customers’ needs and use their feedback to design technology and financial options that directly improve their experience and workflows. For law firms, this means that we do the basics very well. We reply to our customers with substantive responses in 10 minutes on average, while others respond in hours or days, and we hardly ever miss covering a job. We pair that with the benefits of unique technology, like Transcript Genius, our new AI offering, or Steno Connect for Zoom, our Zoom app, so we really make it easier for attorneys to take depositions or more thoughtfully consume the post-deposition content that gets delivered to them in their transcripts.

Ari Kaplan: What traditional court reporting and litigation services do you offer, and how do you tech-enable those activities to distinguish Steno’s approach?

Greg Hong: We offer court reporting, videography, interpreters and conference room sourcing. We are also starting to provide service-of-process and e-filing assistance. We want to become a one-stop shop for our clients. Today, court reporting is about staffing. Law firms are looking for a provider, and that is often the end of the transaction. In addition to services, we offer unique technology and a dashboard allowing our customers to search their entire repository of Steno transcripts. We also have unique integrations with case management providers, like Clio and Litify.

Ari Kaplan: How do you stay ahead of the market, given that even traditional court reporting firms are starting to offer broader services?

Greg Hong: We take the best-in-class technology from outside the legal world and bring it to bear within this industry. When we transitioned from in-person depositions being the de facto standard before the pandemic to remote depositions becoming the norm after mid-2020, we built remote deposition offerings to accommodate our clients. We continue quickly bringing new ideas to market because we maintain an in-house technology team. At the same time, our competitors often leverage third-party providers to build their technology solutions or use something off the shelf. We also package our tools, so that attorneys can easily consume them. My co-founder is a practicing attorney running a firm with 11 lawyers, so before we release anything, we pilot it in his office for feedback, rather than simply affixing a label and charging for it. That is not the way to build a long-term customer relationship.

Ari Kaplan: How much human stenography occurs in a typical matter, and how much technology is involved?

Greg Hong: We only offer human court reporters, the de facto gold standard. The technology is supplemental. When we talk about our AI offering, it is applied on a post-deposition basis. A firm expects a court reporting agency to deliver a transcript following a deposition, but we allow the reader to interact with that document more thoughtfully, using the power of a large language model to interrogate that record. For example, our technology can help a lawyer instantly summarize a deposition and highlight the areas that indicate liability, with citations to the supporting testimony. Or if a practitioner is taking a deposition on Zoom and needs to share documents, our proprietary app makes that process as seamless as sliding a file across a conference room table. We are trying to emulate the real-world deposition experience even when virtual.

Ari Kaplan: How do you leverage your success in court reporting into other areas of litigation services?

Greg Hong: We see NPS scores well into the ’80s, indicating that our customers like working with us. They often provide unsolicited positive feedback. Doing an excellent job is the easy starting point for expansion. Once you’ve built that relationship and rapport, customers will trust you with e-filing or service of process tasks. They give us that shot, and we exceed expectations. That is how we have been able to grow.

Ari Kaplan: How do you see the legal support market evolving?

Greg Hong: Over the next few years, there will be consolidation across all of these service offerings. Law firms engaging in litigation today use several different service providers, from medical records support and e-filing to service-of-process and depositions, which can be challenging to manage. Many attorneys would prefer to combine those services, especially when they offer thoughtful integrations into their case management platforms. If all their records could sit magically in a single application, it would offer a much more cohesive experience. Adding unique, best-in-class technologies also transforms legal support, allowing legal teams to more efficiently and thoughtfully litigate their cases.

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Listen to the complete interview at Reinventing Professionals.

Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlight transformative change and introduce new technology at his blog and on iTunes.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Cybersecurity

Phishing emails purported to be from PACER’s electronic filing system target lawyers

By Debra Cassens Weiss

November 7, 2024, 9:42 am CST

Lawyers who respond to fake emails purporting to be from PACER’s electronic filing system are being led to malicious websites with computer viruses, the U.S. federal judiciary warned Wednesday.

The emails claim to contain notices of electronic filing from PACER’s Case Management/Electronic Case Files system, known as CM/ECF. Lawyers are told to reply immediately, and when they do, they are sent a link to access the supposed case documents. Instead, the link sends lawyers to the malicious website.

The scam targets lawyers across the country, according to the IT Security Office for the Administrative Office of the U.S. Courts.

“To avoid becoming a victim of the scam,” the Administrative Office of the U.S. Courts said, “be sure to always validate cases and case documentation directly through your local federal court’s CM/ECF system. Never download attachments or click on links from unofficial or questionable sources.”

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3. Kirkland partner can’t present argument or…

Trials & Litigation

Kirkland partner can’t present argument or evidence because he ‘crossed the lines’ of court orders, judge says

By Debra Cassens Weiss

October 31, 2024, 8:45 am CDT

A Missouri judge has sanctioned a Kirkland & Ellis partner after finding the lawyer “acted in bad faith on several occasions” and tried to inflame the jury during a civil trial targeting the makers of baby formula.

As a sanction, Kirkland partner James F. Hurst can’t argue about or object to evidence, and he can’t question witnesses, said Judge Michael Noble of the 22nd Judicial Circuit Court of Missouri in an Oct. 24 order.

Law.com and Bloomberg Law have coverage.

Noble said it appeared that Hurst was trying to elicit a mistrial when he “either attempted to violate or overtly crossed the lines of the court’s orders related to evidence and arguments before the jury.” In one recent direct examination, Noble said, Hurst “specifically admitted on the record to eliciting testimony and introducing evidence to intentionally inflame and prejudice the jury” in a manner banned by the court.

Hurst is defending Abbott Laboratories in a lawsuit filed by plaintiff Elizabeth Whitfield, who alleges that her baby developed an intestinal illness called necrotizing enterocolitis and suffered brain damage from drinking formula made by Abbott Laboratories. A second formula company, Mead Johnson, and the St. Louis Children’s Hospital are also defendants.

Whitfield’s lawyer, Tim Cronin, has argued that the makers of the formula didn’t disclose the full risk that their product poses for premature babies, according to past coverage by Reuters. Hurst has argued that the formula doesn’t cause necrotizing enterocolitis but that a mother’s breast milk protects against the illness.

Nearly a thousand cases similar to Whitfield’s suit are pending, according to Reuters. One case resulted in a $495 million verdict against Abbott Laboratories. In another, Mead Johnson was found liable for $60 million.

Bloomberg Law described Hurst as “a star litigator,” while Law.com said he is regularly featured in the Litigation Daily’s Litigators of the Week column.

A Kirkland spokesperson told Law.com and Bloomberg Law that Hurst is “a world-class trial lawyer” who “has successfully led cases for 30 years in jurisdictions around the country with supreme professionalism. His impeccable trial record speaks for itself.”

An Abbott Laboratories spokesperson told Law.com and Bloomberg Law that Hurst “is a terrific trial lawyer and has acted professionally, ethically and in good faith throughout the case.”

In what might be one of the of the most consequential presidential campaigns in our lifetime, and maybe American history, remarkably little attention has been paid to judicial appointments. But the longest legacy of any presidency is the picks for the Supreme Court and the lower federal courts. History shows how much presidential elections matter.

The Supreme Court

Between 1960 and 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents. In this time, though, Republican presidents selected 15 Supreme Court justices, while Democratic presidents chose only eight.

Much of this was a result of the accidents of history as to when vacancies occurred. Richard Nixon selected four justices, while Ronald Reagan and Donald Trump each picked three. But no Democratic president since Harry Truman has selected more than two justices. Jimmy Carter had no vacancies to fill and President Joe Biden only one. By contrast, every Republican president during this time, except Gerald Ford, picked at least two justices.

Put another way, while Trump chose three justices in four years, the prior three Democratic presidents—Jimmy Carter, Bill Clinton and Barack Obama—served a combined 20 years in the White House but selected only four justices in those two decades.

It is easy to see how much presidential elections matter, for the Supreme Court, for constitutional law and for people’s lives, by imagining different outcomes. What if Hubert Humphrey had won the presidential election in 1968 rather than Nixon and Humphrey had been able to select four justices in his first two years in office? The liberalism of the Warren Court would have continued for decades.

The Burger Court, with four Nixon appointees, moved the law in a decidedly more conservative direction. If there is one case that exemplifies the consequences of the 1968 presidential election, it was San Antonio Independent School District v. Rodriguez (1973), in which the Supreme Court expressly rejected the claim that education is a fundamental right. Rodriguez involved a challenge to the Texas system of funding public schools largely through local property taxes. Texas’ financing system meant that poor areas had to tax at a high rate but had little to spend on education; wealthier areas could tax at low rates but still had much more to spend on education. For example, in San Antonio, one poorer district spent $356 per pupil while a wealthier district spent $594 per student.

The plaintiffs challenged this system on two grounds: It violated equal protection as impermissible wealth discrimination, and it denied the fundamental right to education. The court rejected the former argument by holding that poverty is not a suspect classification and that therefore discrimination against the poor only need meet rational basis review. As for the latter, the high court held that there is no right to education under the Constitution.

The decision was 5-4, with the four Nixon appointees, joined by Justice Potter Stewart, a Dwight Eisenhower appointee, in the majority. The court’s rejection of education as a fundamental right closed the door on claims of many other rights, especially rights to government services. And the court’s rejection of poverty as a suspect classification ended the Warren Court’s efforts at using the Constitution to advance economic justice.

The 2016 presidential election was similarly pivotal as to the composition of the court and the content of constitutional law. Since Trump’s three justices have joined the court, it has dramatically changed many areas of law. It overruled Roe v. Wade ending, after 49 years, a constitutional right to abortion. It has dramatically expanded gun rights and held that the only gun regulations allowed are those that existed historically. It has radically changed the law concerning the religion clauses, overruling the test that had been used for more than a half century for determining whether there is a violation of the establishment clause of the First Amendment. The court ended affirmative action by colleges and universities, effectively overruling many decisions over the last 45 years. The court for the first time held that a business has a First Amendment right to violate state antidiscrimination laws when it is engaged in expressive activity.

In addition, the court has fundamentally altered the administrative state by ruling that agencies cannot act on major questions of economic or political significance without clear congressional authorization, by overruling Chevron deference where courts defer to agencies’ interpretations of ambiguous statutes, and by holding that agencies cannot impose civil penalties. The court has broadly granted the president immunity from criminal prosecution for anything done carrying out the president’s constitutional or statutory duties.

It is striking that each of these decisions was 6–3 (although Chief Justice John Roberts only concurred in the judgment in overruling Roe), with the three Trump appointees in the majority. And each of these decisions moved the law in a much more conservative direction. They are entirely the product of the 2016 presidential election and Trump having been able to appoint three justices to the court. If Hillary Clinton had been elected in 2016 and if she instead had appointed the three justices, none of these cases would have been decided the same way.

Other presidential elections have been important, though not as pivotal for the composition of the court. If John McCain had defeated Obama in 2008 and selected two justices, the current court would likely have an 8-1 conservative majority rather than the current 6-3 split. On the other hand, if John Kerry had prevailed in 2004—and he would have won if he had carried Ohio—and he had replaced Chief Justice William Rehnquist and Justice Sandra Day O’Connor, there would be a 5-4 liberal majority today.

What is the likely effect of this presidential election? Of course, there can be unforeseen vacancies. But only three justices—Clarence Thomas (age 76), Samuel Alito (age 74) and Sonia Sotomayor (age 70)—are in their 70s. My prediction is that if Trump wins and there is a Republican Senate, Thomas and Alito will retire so that their seats can be taken by much younger conservatives. That would cement a conservative majority for decades to come as Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all in their 50s. Conversely, if Vice President Kamala Harris is elected president and there is a Democratic Senate, Sotomayor likely may retire and allow that seat to be filled by a liberal. Without a doubt, Trump and Harris would pick individuals with radically different ideologies for the high court.

Federal courts of appeals and district courts

In his four years as president, Trump picked 234 Article III judges: three Supreme Court justices, 54 judges for the United States courts of appeals, 174 judges for the United States district courts and three judges for the United States Court of International Trade. As of October 21, Biden has selected 213 Article III judges: one Supreme Court justice, 44 judges for the United States courts of appeals, 166 judges for the United States district courts and two judges for the United States Court of International Trade.

In contemplating the likely effects of this presidential election, it is notable how closely divided many circuits are between Democratic and Republican appointees. Overall, of the 179 courts of appeals judges, 89 were appointed by Republican presidents and 89 by Democratic presidents. Out of the 13 federal appeals courts, Democratic appointees have a majority on seven courts, whereas Republican appointees have a majority on six courts.

On the Second Circuit, there are seven Democratic appointees with active status and six Republican appointees. While on the Third Circuit, there are seven Republican appointees and six Democratic appointees. On the Sixth Circuit there are nine Republican appointees and seven Democratic appointees. The Seventh Circuit has six Republican appointees and five Democratic appointees. The 10th Circuit has five Republican appointees and seven Democratic appointees, while the 11th Circuit is the mirror image with seven Republican appointees and five Democratic appointees. It often is forgotten how closely divided the Ninth Circuit is with 13 Republican appointees and 16 Democratic appointees.

The reality is that overall, there is a great ideological difference between who Democratic and Republican presidents pick for federal judgeships. And it is irrefutable that Trump and Harris would pick vastly different people for the federal bench.

Conclusion

The coming presidential election will matter enormously for the composition of the Supreme Court and the federal judiciary. And its effects will last for decades.

See also:

What we know about Trump, Harris, and judicial nominations

Mike Davis trolls the left online. He could also help Trump pick MAGA judges

Conservative faction pushes judge nominees who are ‘even more bold and more conservative’

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and the forthcoming A Court Divided: October Term 2023 (November 2024).

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Judiciary

Judge reprimanded for ordering payment of restitution to himself

By Debra Cassens Weiss

October 15, 2024, 1:15 pm CDT

A judge in Putnam County, Tennessee, has received a public reprimand for accepting a guilty plea and imposing restitution in a case involving damage to his truck.

The Tennessee Board of Judicial Conduct reprimanded Judge R. Steven Randolph of Tennessee in an Oct. 14 letter, the Legal Profession Blog reports.

The defendant was charged only with driving without a license, despite damaging Randolph’s truck. Randolph accepted a guilty plea March 25 and ordered the defendant to pay restitution of $590, which was for the estimated cost to repair his vehicle, according to the reprimand letter. The restitution payment “was solely [Randolph’s] idea,” the letter said.

The defendant was not represented by a lawyer, and he did not speak English. He was assisted by an interpreter, however.

When the defendant asked to pay in installments, Randolph granted the request. No money was ever paid, however, because Randolph set aside the guilty plea in an April 1 order, and a different judge dismissed the case.

Randolph had maintained that the defendant waived the judge’s disqualification in the case, and the amount of restitution was minuscule. He acknowledged, however, that he shouldn’t have heard the case.

Even though Randolph informed the defendant about his conflict of interest, he did not follow proper procedure, the reprimand letter said. The only chance the defendant had to consider the waiver was in the presence of the judge and court personnel.

Henry Fincher, Randolph’s lawyer, did not immediately respond to an ABA Journal voicemail seeking comment.

Randolph previously received a public reprimand in September 2023 for posting a video to a Putnam County school’s Instagram page in which he pledged to “really crack down on truancy problems.” Unexcused absences would result in a sentence of seven hours of community service at the recycling center for the student and possible incarceration for parents, he said.