By Nate Raymond
(Reuters) – Democratic-led states that have vowed to challenge President-elect Donald Trump’s initiatives will face a tough legal landscape after his first-term appointments reshaped the judiciary, not only giving the U.S. Supreme Court a conservative supermajority but also diluting liberal judges’ influence on a key appeals court that often stymied his agenda.
During the Republican’s first term, Democratic state attorneys general brought 155 multistate lawsuits against his policies, notching an 83% success rate, according to a database maintained by Marquette University political scientist Paul Nolette.
California, Washington and other Western states led the charge then and are preparing to do so again. The 23 states that will have Democratic attorneys general next year are reviewing Trump’s campaign promises and laying the groundwork for legal challenges on issues such as immigration, the environment and healthcare.
“We’ve thought about the legal arguments,” California Attorney General Rob Bonta, a Democrat, told Reuters. “We, in many cases, have briefs ready to file. Just got to cross the t’s, dot the i’s, and press print.”
Asked for comment on the potential litigation, Trump transition team spokeswoman Karoline Leavitt in a statement said Trump will serve all Americans, even those who did not vote for him, and “will unify the country through success.”
Bonta cited Trump’s plan to deport millions of immigrants in the U.S. illegally as a potential litigation target for California, home to more than 10 million immigrants. The California Department of Justice, which Bonta heads, would receive much of the $25 million in funding Democratic California Governor Gavin Newsom requested this month for legal fights with the Trump administration.
But the lawsuits will proceed through a federal judiciary remade by Trump during his first four years in office by his near-record 234 judicial appointments, representing about a quarter of all judges, including three U.S. Supreme Court justices that gave it a 6-3 conservative supermajority.
Trump’s Supreme Court appointees have moved it dramatically rightward, issuing rulings that have overturned the nationwide right to abortion, expanded gun rights and limited the authority of government regulators.
But the high court hears only a handful of cases each year. Before a case can reach the justices it must wind its way through lower courts, including federal appeals courts that often have the final say.
Trump transformed those appeals courts as well by appointing 54 appellate judges. He flipped 19 seats previously held by Democratic appointees on intermediate courts after Senate Republicans opted to cease allowing senators to block appellate court nominees from their home states they did not support.
LIBERAL BASTION NO MORE?
Key among the appeals courts during Trump’s first term was the San Francisco-based 9th U.S. Circuit Court of Appeals, long considered the most liberal of the 12 regional appeals courts.
Many cases challenging Trump’s policies in his first administration ended up at the 9th Circuit after being initially filed in the Northern District of California, whose 14 active judges in San Francisco, San Jose and Oakland are all Democratic appointees and frequently issued injunctions at the request of Trump’s opponents.
The 9th Circuit is expected to again play host to litigation challenging Trump’s agenda. Bonta declined to “telegraph or signal our strategy,” but said he believed “the vast majority of the courts will provide us a fair hearing and we’ll prevail.”
Trump in 2018 described the 9th Circuit as a “disgrace” as it issued a series of decisions rejecting key parts of his first-term agenda, including against his travel ban from six Muslim-majority countries and his bid to rescind the Deferred Action for Childhood Arrivals program that protects immigrants brought into the country illegally as children from deportation.
But Trump in the meantime gained the chance to name 10 conservative judges to the 9th Circuit, which when he took office in 2017 had 18 Democratic appointees, seven Republican appointees and four vacancies.
“President Trump transformed the once-out-of-whack, liberal 9th Circuit,” said Mike Davis, a Trump ally at the advocacy group the Article III Project.
Today, it has 16 Democratic appointees and 13 named by Republican presidents, a shift that has increased the frequency of conservatives dominating the randomly drawn panels that hear appeals in the court.
“There is more risk in going there,” John Collins, a law professor at George Washington University, said of the 9th Circuit. “It’s less of a sure thing.”
OTHER APPEALS COURTS
Collins and other experts said that could shift the calculus for litigants looking to challenge the second Trump administration’s policies, potentially leading them to look to other jurisdictions with more reliably liberal benches.
Even if courts ultimately rule for the Trump administration, a thicket of lawsuits in multiple jurisdictions has the potential to cause delays and impede the swift implementation of Trump’s agenda.
Conservative law professor Josh Blackman of the South Texas College of Law Houston said Democratic-led states seeking court victories would have better odds in the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, potentially by filing lawsuits first in Maryland, whose federal court is dominated by Democratic appointees.
Democratic Maryland Attorney General Anthony Brown recently said he was seeking additional funding for federal litigation to prepare for lawsuits whenever “the rights of Marylanders are being impaired,” such as if the Trump administration seeks to restrict or ban abortion nationwide.
The 4th Circuit hears appeals from Maryland’s federal courts. Its Democratic majority during Trump’s first term blocked his travel ban and in recent rulings upheld gun control laws and ruled against Republican-backed voting restrictions.
Another alternative venue could be the federal court in Massachusetts, where the state’s Democratic attorney general, Andrea Campbell, has signaled she is preparing for litigation.
Appeals from rulings by federal judges in that state go to the Boston-based 1st U.S. Circuit Court of Appeals, the lone regional federal appeals court with no Trump appointees and a majority of Democratic-picked judges.
A spokesperson for Campbell called Massachusetts “an important venue for potential violations of the law,” adding it had “experienced thoughtful judges in federal court.”
(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Alistair Bell)
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