Updated Apr 27, 2022 - Politics & Policy

Trump judges audition for Supreme Court

Illustration of a lone supreme court chair under a spotlight.
Illustration: Aïda Amer/Axios

A number of young and prominent Trump-appointed judges are writing their opinions with provocative language, diving into the culture wars in ways offering an audition for a future Supreme Court opening.

Why it matters: Most judges who are would-be justices try to avoid controversy, preserving themselves for a confirmation hearing. But with the specter of former President Trump mounting another run for office, their opinions may not only create opportunity but curry favor with the person who could fulfill their ambitions.

  • During his term, Trump had tremendous impact on the federal bench.
  • He appointed 234 judges who will rule on some of the most consequential issues for decades to come.
  • One of them, 35-year-old Kathryn Kimball Mizelle, recently — and single-handedly — struck down the federal mask mandate on public transportation.

What we're watching: James Ho, 45, sitting on the 5th U.S. Circuit Court of Appeals, has called abortion a "moral tragedy."

In his very first opinion about campaign finance, he wrote extrajudicially: “If you don’t like big money in politics, then you should oppose big government in our lives."

  • More recently, Ho, in a public speech, defended a law professor who came under fire for criticizing Biden's choice to only consider Black women for the Supreme Court.
  • “If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me, too" — a statement dropped into the middle of what at the time was a highly sensitive, political issue.
  • Judges don't usually speak in public on sensitive matters that could come before the court.

Lawrence VanDyke, 49, serving on the 9th U.S. Circuit Court of Appeals, mocked his colleagues by writing an opinion about what he thought an en banc panel — an entire court's judges, rather than a single one — would argue in opposition.

  • In doing so, he made a joke about the judicial process by suggesting, at one point, they “could easily just delegate this part of the opinion to our interns.”

Judge Kyle Duncan, 47, also serving on the 5th U.S. Circuit Court of Appeals, willfully misgendered a trans woman.

  • Duncan refused to revise her name on court documents on technical grounds.
  • In a 10-page ruling, he argued that if a court agrees to use “her” (instead of “him”), then it would be wading into a sea of "neologisms" — including more complex pronouns like "ze/hir."

Between the lines: Other judges — across the political spectrum — have also been wading into politics in more attention-grabbing ways.

  • Newly confirmed Supreme Court Justice Ketanji Brown Jackson did so in a U.S. District Court ruling that Trump's former White House counsel Don McGahn must comply with the congressional subpoena.
  • "Presidents," she wrote, "are not kings."

What they're saying: J. Michael Luttig, a former U.S. Court of Appeals judge appointed by the late President George H.W. Bush, told Axios: “Ideally, federal judges would make few, if any, extrajudicial comments in their opinions — and none in their public speeches and remarks."

  • "The former is exceedingly difficult to honor in practice over a long period of service on the bench, but every attempt should be made,” he said.

Sarah Isgur, a former Trump administration Justice Department senior official and, now, co-host of the legal podcast Advisory Opinions, said the partisan split in the Senate is propelling the change in judicial temperament.

  • "Once the filibuster was gone for the lower-court judges, what you see is that people no longer need to get votes from the opposing party, but they need to be the most extreme version of their own party," she told Axios.
  • "And, so, with some of the Trump appointed judges, there is a lot more willingness to signal to the right-flank of the party. For those who want to be Supreme Court justices, or want to be in the running for that sort of influence, they don't need to signal to the left."

Editor’s note: We removed a reference to “rhetorical flourishes” that unintentionally minimized a judge’s decision to misgender a trans woman and gave false equivalency to other judges’ decisions.

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