WASHINGTON – For many decades, there has been little sign of partisan behavior in what is possibly the bare power play of the federal judicial system: When all active judges of a federal appeals court rethink the decisions of three judicial bodies, a practice that lawyers call en banc review.
That changed in the Trump era. a new study has found.
“From 2018 to 2020 there was a dramatic and statistically very significant increase in both partisan splits and partisan reversals – more in both categories than in any other period over 60 years.” Neal Devins and Allison Orr Larsen, Law professors at William & Mary, wrote the study “Weaponizing En Banc” due to be published in the New York University Law Review.
By partisan divisions, they meant full judicial bodies in which the judges appointed by the presidents of one party differed almost perfectly from those of the other party. Partisan reversals were what the term implied: those in which one of candidates for the presidents of the party that controls the court dominated the en banc majority over the disagreements of most of the minority party candidates overthrew a candidate-appointed three-judge panel the minority party.
Here is an example of both things. When the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia ruled last year that a challenge to President Donald J. Trump’s business practices could proceed, The court split according to party-political standards. All nine judges in the majority were originally appointed by Democratic presidents; All six dissenting judges were Republican nominees. The decision overturned a unanimous decision by a three-judge panel of Republican candidates.
In contradiction, Judge J. Harvie Wilkinson III lamented the majority’s decision, writing that it had “urged the judiciary to assemble in suits according to party-political standards in order to win judges as partisan warriors, which is contrary to the rule of law, which is and should be our first devotion”.
In examining 950 en-banc cases over 54 years, Professors Devins and Larsen wrote that they hardly expected any signs of this type of partisan divide or reversal in the 1960s and 1970s. That turned out to be true. However, they anticipated a steady increase in this behavior starting in the 1980s when the Reagan administration turned its attention to supplying the federal courts with Conservative judges. That has been proven wrong.
“Our data shows, for the most part, stability and a lack of partisan 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 have a different answer than what we expected,” she said. “En banc has not been used as a weapon for years.”
But the study also found what it called the “Trump-era upward trend”.
“Almost 35 percent of the en-banc decisions in the period 2018-2020 concerned either partisan reversal or partisan split,” wrote the professors.
“Twenty-seven percent of all en-banc decisions in 2018-2020 were made in near-perfect blocks, broken down by nominee party,” they wrote. That was almost twice as much as such divisions during the reigns of Presidents Bill Clinton, George W. Bush and Barack Obama, she wrote, “and is now far greater than any of the years we have studied over six decades.”
Recent partisan behavior in court has been, in some ways, non-partisan: it has become increasingly likely that both Democratic and Republican presidents will get involved.
A re-examination of panel decisions by appeals courts is very rare and the frequency is decreasing. “The courts now only review 0.19 percent of decisions en banc, after 1.5 percent in 1964” found a study from last year. But when it does happen today, Professors Devins and Larsen note, it is increasingly enlivened by partisanship.
Professor Devins said that was worrying. “The cost of collegiality and possibly the cost of the independence and legitimacy of the judiciary can make en banc quite destructive,” he said.
Mr Trump appointed 54 judges to federal appeals courts, or about 30 percent of the total number of active judges. This brought three courts of appeal under republican control and strengthened the party’s majorities over others.
“We just had a real change in the last administration and will see it again in a moment,” he said Marin K. Levy, a law professor at Duke and the author of one new article in the Northwestern University Law Review on Senior Judges. “These types of personnel changes have a huge impact on the courts.”
Professor Devins said there was reason to hope that partisan fever would subside in the judiciary and that the surge documented in his study would prove to be an anomaly.
“The main finding of the paper is that en banc has not adopted this feature, even in a time of growing partiality,” he said. “We just have one worrying development. We just don’t know yet if this is the beginning of the end or if instead it’s just a bug related to things related to Trump. “