Bold. Innovative. Visionary. At a time when many courts are losing the battle to provide access to justice, especially in low-income communities, the Arizona Supreme Court has brought fresh ideas to bridge the justice gap.

Vice Chief Justice John Lopez, at the invitation of the ABA Crossroads Caucus, discussed innovations his court has recently put in place in a conversation with moderator Mark Martin, dean of High Point University School of Law at the ABA Midyear Meeting in Phoenix in February.

As reported by the Legal Services Corporation in its most recent Justice Gap Study in 2022, low-income Americans do not get any or enough legal help for 92% of their substantive civil legal problems. To address this issue, Lopez and his colleagues have focused on improving access to legal services by lowering costs and increasing options. For lower income citizens, the court approved several programs, including the Legal Paraprofessional Program, the Lawyer Apprentice Program, the Legal Advocate Program and the Government Law Admission Program.

The Legal Paraprofessional Program, to highlight a very successful program, has been in operation since early 2021. It grants a license that allows nonlawyers to offer limited legal services, including legal advice; drafting and filing legal documents, opinions and strategies; and representing clients in court. The first licenses were granted in November 2021, and Arizona has 65 licensed LPs. The program improves access to justice by allowing trained nonlawyers to represent clients in criminal, family, civil, administrative and juvenile law matters. The University of Arizona and Arizona State University offer a Master of Legal Studies that prepares students for the legal paraprofessional licensure exam.

To address the problem of Arizona’s “legal deserts,” a term coined by the ABA to describe counties with few or no lawyers (i.e., fewer than one lawyer per 1,000 residents), the Arizona Supreme Court approved a Lawyer Apprentice Program. The program encourages aspiring lawyers to stay in Arizona, creates a pathway to licensure for law graduates with lower bar scores and increases the number of lawyers in the state. In a state that ranks 49th of 50 states in lawyers per capita, such a program is a necessity, but it’s a very disciplined necessity: Applicants must (1) be graduates of an ABA-accredited law school (2) score 260-269 on the Uniform Bar Exam (3) and commit to practice under the supervision of a qualified Arizona attorney for at least two years in rural Arizona or a public law practice.

More controversial are the Arizona Supreme Court-approved “Alternative Business Structures.” The ABS program allows nonlawyers to partner with lawyers in businesses that provide legal services. The program was created to encourage innovation in legal services and make them more affordable. ABS are subject to the Rules of the Arizona Supreme Court regulating the practice of law, including the requirement that the ABS employ a member of the Arizona Bar who supervises the practice of law. While such arrangements are common in the United Kingdom and Australia, they are actively debated in the U.S.

When Big Four accounting firm KPMG was approved on Feb. 27 to own a law firm under the ABS program, some skeptics asked whether such a step would actually bridge the justice gap or lower costs for lower-income citizens. Lopez acknowledges that some have also raised concerns that the “one-stop shop” model may put traditional firms out of business.

As part of the Arizona Judiciary’s Five-Year Plan, Chief Justice Ann A. Scott Timmer, a 2021 ABA Journal Legal Rebel, has made public trust and confidence in the judiciary a foundational goal. Lopez strongly supports this goal, and the court has put in place several initiatives to address the problem.

He told his audience: “Much of the public’s distrust in our courts is driven by inaccurate media coverage of our cases. Too often, media coverage centers on a case result and often fails to accurately identify the issue, if at all. Inaccurate framing of judicial decisions is then used to drive a narrative that judicial opinions are invariably political decisions. To that end, too many media reports on judicial opinions are limited to the party affiliation of the judge, the case result and its political significance or palatability. This coverage encourages public cynicism and distrust of courts.”

To counter objectively inaccurate characterizations of judicial opinions, the Arizona Supreme Court recently adopted a practice of releasing a brief summary of the judicial opinion that identifies the issues and sets out the reasoning and the decision in the case. Lopez observed that the initial results seem to be positive, noting that coverage of judicial decisions has been more accurate. He said the purpose and effect is not to diminish critical reporting of decisions, but to increase the likelihood that the criticisms and coverage accurately reflect the actual issues, reasoning and conclusions in the case.

Lopez’s final topic was retention elections. Arizona adopted a merit selection system in 1974 that applies to Arizona’s appellate judges and trial court judges in Arizona’s four most populous counties, where a nonpartisan commission of lawyers and citizens investigates and evaluates candidates for judicial positions. The commission then submits the names of the most highly qualified applicants to the governor, who makes the appointment from that list.

Once appointed, judges are subject to retention through regularly scheduled retention elections, by which a majority of votes in favor of a judge results in retention for another term. During judges’ terms, beginning in 1992, a commission of citizens and lawyers, known as “Judicial Performance Review,” assessed judges’ performances and issued recommendations to the voters prior to an election.

From 1974 to 2020, no endorsed judge had ever been removed by voters. In fact, most judges recommended for removal by JPR were retained by voters. Moreover, during those nearly 50 years, only three judges were removed by voters in retention elections; all were embroiled in legal scandal or were otherwise deemed unfit by the JPR Commission.

But, Lopez said, “Something began to change about Arizona’s retention elections in 2020. For the first time, a major political party targeted judges for nonretention. All were retained. But in 2022, voters failed to retain three Maricopa County Superior Court judges. In other words, as many judges were removed by voters in one election as had been removed over the previous 48 years. Notably, two of the three judges had been recommended for retention by the JPR Commission—a first in the history of Arizona’s merit selection system. One of the judges was targeted not for his judicial performance, but rather for his prior associations and his work as an assistant A.G. in Arizona.”

In 2024, the merit selection system, including the retention election, became a major political issue. One side of the partisan/ideological divide cited an unpopular abortion decision, while the other side of the divide expressed dissatisfaction with the court’s election decisions. These political forces culminated in two primary events: (1) a significant campaign was marshaled to remove two members of the Arizona Supreme Court (2) and Proposition 137 was placed on the ballot to eliminate routine retention election for judges unless they committed various crimes, filed personal bankruptcy or were not recommended for retention by JPR. This proposition was rejected by nearly 80% of voters.

Lopez concluded his presentation by questioning the wisdom of politicizing the merit selection process. He quoted the late U.S. Supreme Court Justice Sandra Day O’Connor who called the prospect of jettisoning the merit selection system “a great step backwards.”

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Jo Ann Engelhardt is a member of the ABA Board of Governors representing District 8, a member of the board of the American Bar Foundation and a founding member of the ABA Crossroads Caucus.

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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.

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.