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THE COURT WHERE THE RULE OF LAW STILL LIVES—FOR NOW  
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Jonathan van Harmelen
December 3, 2024
The New Republic
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_ During Trump’s first term, the Ninth Circuit Court of Appeals was
a rare oasis of judicial sobriety. It will face an even sterner test
the next time around. _

Protesters against President Donald Trump's proposed Muslim ban stand
in front of the United States Court of Appeals for the Ninth Circuit
in San Francisco, California on February 7, 2017. , Josh Edelson/Getty
Images

 

Waking up on November 6, Americans found that the political status quo
had once again been upset, thanks to the reelection of Donald Trump.
In winning both the popular and electoral votes, Trump, the first
convicted felon to be elected president, had defied political odds and
the judicial system. In the days that followed, political commentators
took stock of the tectonic shifts, prophesying that a second Trump
term would be dramatically more polarizing. With Republicans in
control of both houses of Congress, the balance of power in the
federal government is tipped in their favor. The only remaining
question is how the judiciary will respond to a new Republican agenda.


 
It seems ironic that, in a system that has failed to uphold justice by
allowing Donald Trump to run for president after being convicted of
crimes, any hope would remain in the judicial system to resist
encroachments on others’ liberties. Yet for many liberals hoping to
maintain a check on Trump’s policies, it may be their best chance.

The Supreme Court is dominated by a conservative majority thanks to
Trump’s appointments. It was this court’s majority that enabled
Trump’s reelection by granting him extensive immunity for crimes
committed while in office. At the federal circuit court level,
however, the question of legal influence is much less predictable.
Although Trump appointed dozens of judges to the benches of the
federal courts, the various circuit courts of the United States remain
ideologically diverse.

Perhaps the most notable case of a federal circuit court making
consistent challenges to the Trump agenda is the Ninth Circuit Court
of Appeals. As the largest federal appellate court, with over 29
active judges, the Ninth Circuit holds significant influence over
federal policy and has played a crucial role in major court cases
dating back to the early twentieth century.

With a jurisdiction over the West Coast states of California,
Washington, Oregon, Montana, Idaho, Arizona, Alaska, and Hawaii—20
percent of the total population—and headquartered in San Francisco,
the Ninth Circuit’s geographical location has led conservative media
to characterize the court as left-leaning, like the city where it is
based.

The media’s portrayals of the Ninth Circuit Court as a liberal
institution are not totally unfounded. The liberal traditions of the
Ninth Circuit go back long before our current political moment. In
fact, the Ninth Circuit has a long liberal history since it was
created by Congress in 1891. Over the course of many decades, it has
issued dozens of landmark rulings on issues regarding civil liberties,
free speech, and desegregation.

 
 
The liberal trend on the court can be traced to the mid-twentieth
century. Among the individuals who defined the court then was Justice
William Denman, who sat on the court from the 1930s to the 1950s and
presided over it as chief justice from 1948 to 1957. Denman was a
member of the San Francisco political elite; his father was a San
Francisco city supervisor and the father of San Francisco’s public
school system. A distant relative of San Francisco Mayor James Phelan,
Denman spent his early political career as a Democratic official in
the Wilson administration.

Denman later became a close political and social friend of Franklin
Roosevelt, who appointed him to the bench of the Ninth Circuit in
1935. In 1937, Denman advised Roosevelt in his unsuccessful campaign
to expand the Supreme Court—later derided as his court-packing
scheme.

Perhaps Denman’s greatest historical contributions to the court were
his consequential rulings on civil rights issues. In May 1943, Denman
and his fellow judges ruled on the case of _Korematsu v. United
States_ and _Endo v. United States_—two cases challenging the
government’s decision to incarcerate Japanese Americans during World
War II. Denman at times clashed with his colleagues; when his
colleagues chose to send an earlier case, _Hirabayashi v. United
States, _to the Supreme Court instead of issuing a ruling, Denman
declared it to be the “deportation of 70,000 of our citizens without
hearing.”

In the case of _Korematsu,_ Denman accused his colleagues, who upheld
Fred Korematsu’s conviction, of again ignoring the due process issue
at the heart of the case. When Mitsuye Endo’s case came forward as
another challenge to the incarceration policy, Denman directly
assisted Endo’s attorney James Purcell with certifying the case to
the Supreme Court. In the end, the Supreme Court upheld the legality
of the incarceration in Korematsu’s case. Its ruling in Endo’s
case, however, had the immediate effect of ending the policy by
allowing Japanese Americans to return to the West Coast.

In the postwar period, the judges on the Ninth Circuit tackled
desegregation on the West Coast. Following the end of Japanese
American incarceration, Denman and several judges ruled in favor of a
set of Japanese American plaintiffs who petitioned to regain their
citizenship. In April 1947, the judges of the Ninth Circuit ruled in
_Westminster v. Mendez _that California schools could not target
Mexican American students for segregation. Although Mexican Americans
at the time were labeled as white and the parties in the case
stipulated that racial discrimination was not at issue, the ruling in
_Westminster v. Mendez_ was among the first desegregation cases of the
civil rights era.

In the ensuing decades, the Ninth Circuit garnered criticism from
conservatives for its progressive rulings regarding abortion rights
and gun control.

Yet legal scholars have debated the extent to which the court is
actually “liberal.” Writing in 2003, at the time of the Ninth
Circuit’s challenges against the Bush administration’s
counterterrorism policies, University of California, Berkeley, Law
School Dean Erwin Chemerinsky argued that the liberalism of the Ninth
Circuit Court was largely a myth. Chemerinsky discovered that during
the early years of George W. Bush’s presidency, the Supreme
Court’s reversal rate of Ninth Circuit Court rulings was no
different from that for any other circuit court in the country. He
underlined the fact that the court, while at times engaged in legal
scuffles with conservative presidents, was at least as ideologically
diverse as other courts.

A decade later, during the first Trump administration, legal scholars
again directed their attention to the Ninth Circuit’s political
orientation as it battled the Trump administration on some of its
hallmark policies, most notably in the Ninth Circuit’s block of
Trump’s infamous Muslim ban. University of Pittsburgh law professor
Arthur Hellman conducted his own study of the Ninth’s judicial
record in relation to presidential administrations.

Studying rulings from between 1998 and 2020, Hellman concluded that
the Ninth Circuit was indeed a “liberal” court as described by the
press but was most often _selectively_ liberal in its rulings. The
Ninth Circuit’s en banc procedure requires 11 judges to preside over
hearings, and this allows for some occasions where the court may have
a conservative majority. In fact, Hellman stated that the Ninth’s en
banc system often checked more liberal voices on the court. “On the
contrary,” Hellman surmised, “the study shows that it was not
uncommon for liberal icons like Judge Reinhard and Judge Pregerson to
find themselves on the losing side of en banc votes.”

 
 
The perceived liberalism of the Ninth Circuit made it a target of
Donald Trump. At the beginning of his first term, the Ninth Circuit
blocked several executive orders, enraging Trump. Politico previously
reported
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that Trump mentioned in personal conversations with aides that he
wanted to break up
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the Ninth Circuit Court altogether.

As with the Supreme Court, Trump sought to neutralize the Ninth
Circuit by appointing new judges to its bench. Often members of the
Federalist Society, the Trump-era appointees of the Ninth Circuit have
a similar political line with the Republican Party. Avalon Zoppo of
_The National Law Journal_
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reports that while the majority of judges on the court can be
considered liberal, Trump raised the number of conservative judges on
the bench to 13 during his term.

Among the most vocal of Trump’s appointees currently on the bench is
Lawrence VanDyke, a former solicitor general of Nevada and Montana.
ProPublica discovered
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that, much like many other Trump appointees, VanDyke was mentored by
Trump’s legal adviser, Federalist Society founder Leonard Leo.
VanDyke has frequently complained that his fellow jurists have played
“dirty” regarding their rulings on immigration cases. The
appointments of these new judges led _Los Angeles Times_ reporter
Maura Dolan to conclude in 2020 that Trump had effectively
“flipped”
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the Ninth Circuit.

The question of how the court will survive under a second Trump term
remains uncertain. Currently, nine of the 23 senior judges were
appointed by Republican presidents dating back to the Nixon
administration, while the remaining 14 were appointed by Democratic
presidents going back to the Carter administration. All of the current
29 authorized active judgeships in the Ninth Circuit Court are filled.
Erwin Chemerinsky explained to
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the _Los Angeles Times_ that despite President Joe Biden’s efforts
to strengthen the liberal branch of the Ninth Circuit by appointing
new judges, the state of the court remains more ideologically divided
than during the beginning of Trump’s first administration.

However, legal pundits have begun to look to the Ninth Circuit as a
potential guardrail to a new Trump administration. Despite Trump’s
appointments, the majority of the judges on the bench are liberal. In
fact, several recent rulings by the Ninth Circuit have angered some
Trump appointees on the bench. Since the end of Trump’s first term,
the Ninth Circuit Court has taken a liberal stance on hot-button
issues, such as gun control and immigration. On December 1, 2021, the
Ninth Circuit upheld a California law
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banning high-capacity magazines over 10 rounds, overturning Judge
Roger Benitez’s ruling to strike down the ban (Benitez has become a
saint for Second Amendment advocates because of his pro-gun track
record). As Hellman noted in his aforementioned article, the Ninth
Circuit has articulated a particularly liberal vision when it comes to
gun control.

Where the Ninth Circuit may face its greatest challenge, however, will
be from the Supreme Court, which has reversed several of its landmark
decisions. It was the high court that overturned the Ninth Circuit’s
block on the Muslim ban in _Trump v. Hawaii_. More recently, in June
2024, the Supreme Court famously overturned the Ninth Circuit’s
ruling in _Grants Pass v. Johnson_
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clearing the way for state and city officials across the country to
enforce laws restricting homeless encampments on public sidewalks. The
Supreme Court at the same time ended the Ninth Circuit’s block on
Idaho’s abortion ban.

The nature of the courts has led political activists to strategize
their lawsuits by judge  shopping, or picking legal venues with a
specific political leaning to improve their odds in court. In the case
of the U.S. District Court of Northern California, 23 of the 25 judges
are liberal-leaning. Conversely, conservatives have looked to the
Fifth Circuit Court of Appeals for favorable challenges against the
policies of the Biden administration, such as student loan
forgiveness.

U.C. Davis law professor Gabriel Jack Chin argues that despite having
appointed fewer judges than Trump to the Ninth’s bench, Biden made
some gains in instilling a liberal spirit to the court. “President
Biden seems to have gotten at least a little religion about the
importance of the judiciary.” When I asked Chin about the future of
the court under a new Trump administration, he suggested that the
power of circuit courts may wane as the Supreme Court begins to
diminish the influence of moderate circuit judges in the Ninth Circuit
and elsewhere. “Of course, the Supreme Court cannot police every
routine decision panel decision, but they can and do set firm
parameters.”

Alternatively, Trump may ask Congress to pass legislation to
reorganize the Ninth Circuit to consolidate power among its
conservative judges. Although breaking up the Ninth Circuit would be
unprecedented, many of Trump’s announced policies involve breaking
centuries-old institutions. Even in this case, though, a restructuring
of the court would not eliminate the liberal majority on the bench.
For now, Democrats hoping to stymie any major initiatives by Trump,
such as his proposed deportation scheme, may retain hope that the
Ninth Circuit can provide some guardrails, even if flimsier than those
before 2016.

Jonathan van Harmelen
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Jonathan van Harmelen, Ph.D, is a historian and journalist. He is
writing a book on the role of Congress in the incarceration of
Japanese Americans during World War II. He writes about California
political history and immigration history, and his work has been
published by outlets including _The New York Times, TIME, Chicago
Tribune, _and_ Los Angeles Review of Books_. He is the co-author with
Greg Robinson of _The Unknown Great_.

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* Ninth Circuit Court; Donald Trump; Judiciary;
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