Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Chief Justice John Roberts has often talked about the independence
Speaker 1: of the judiciary and how partisanship has no place on
Speaker 1: the bench. The best way to do our job is
Speaker 1: to work together in a collegial way. No, I'm not
Speaker 1: talking about mere civility, although that helps. I am instead
Speaker 1: talking about a shared commitment to a genuine exchange of
Speaker 1: ideas and views through each step of the decision process.
Speaker 1: We need to know at each step that we are
Speaker 1: in this together. But a new study shows that federal
Speaker 1: Appeals Court judges may not feel like they're in it
Speaker 1: together when sitting on Bank. It shows a dramatic spike
Speaker 1: in both partisan splits and partisan reversals when all the
Speaker 1: judges on a circuit here a case together. The study
Speaker 1: by Neil Devons and Alison or Lawson, professors at William
Speaker 1: and Mary Law School, is called weaponizing, and Professor Devon's
Speaker 1: joins me, now you'll explain what a review on Bonk is.
Speaker 1: So on bond is where all the judges who sit
Speaker 1: on a circuit of the Federal Court of Appeals here
Speaker 1: are case together, as opposed to what happens almost always,
Speaker 1: which are three judge panels, and on bond is used
Speaker 1: for two types of situations. One is where there's a
Speaker 1: conflict between panels, so you have two groups or three
Speaker 1: who have different views as to what the legal answer is,
Speaker 1: what right, what the right answers to the question, and
Speaker 1: so you have to resolve the conflict so that the
Speaker 1: circuit has a law of the circuit. And then the
Speaker 1: second way that on bond is used is cases of imports,
Speaker 1: so the most important cases, the circuit gets the most consequential,
Speaker 1: the most controversial cases, and that's what the on bond
Speaker 1: process operates as. And it's also very different from other
Speaker 1: situations where you have a reviewing court being higher in
Speaker 1: the hierarchy of courts. So you have the district Court
Speaker 1: is reviewed by the Court of Appeals, is reviewed by
Speaker 1: the U. S. Supreme Court. Each of the three courts
Speaker 1: is a distinctive court with different personnel. On bond is
Speaker 1: a situation where you have the judges who sit on
Speaker 1: the same court reviewing the work of a panel of
Speaker 1: judges from that court, and you actually nullify the panel
Speaker 1: of judges decision and it is thrown out. It's not
Speaker 1: in the federal report or anymore, and instead you get
Speaker 1: a new decision from the on bond court. So it's
Speaker 1: the only instance where the review of a decision is
Speaker 1: done sort of horizontally by the same level of judges
Speaker 1: as opposed to vertically by a higher court. Is that
Speaker 1: sort of awkward to have them reversing what their fellow
Speaker 1: judges have ruled. Yeah, it is very awkward, and that
Speaker 1: is part of the reason that typically Federal Court of
Speaker 1: Appeals judges do not like to hear cases on bonk
Speaker 1: because you were essentially saying to your colleagues, you know,
Speaker 1: the work you did was not satisfactory to all the
Speaker 1: judges who said on this circuit. So that type of
Speaker 1: review has the risk of creating ill will. And so
Speaker 1: issues of collegiality are particularly relevant and on bond because
Speaker 1: it has a group of judges to emphacisely what you said,
Speaker 1: reviewing the handiwork, not of judges on a different court,
Speaker 1: but judges on their court. So why did you decide
Speaker 1: to do this study? Well, as is well known, over
Speaker 1: the past several decades, the parties have drifted further and
Speaker 1: further part from each other. There's a shopper partisan divide
Speaker 1: between Republicans and Democrats now as compared to earlier times
Speaker 1: when Democrats included conservatives southern Democrats and Republicans included progressive
Speaker 1: Northern Rockefeller Republicans. So now we live in the world
Speaker 1: where the party divide is also in ideological divide, and
Speaker 1: starting in particularly with Ronald Reagan, presidents of paid attention
Speaker 1: to ideology and appointing judges and needless to say, as
Speaker 1: we saw with Merrick Garland and the refusal to hold
Speaker 1: hearings from Eric Garland, the end of the silibuster or
Speaker 1: lower court judges when Obama was president and for Supreme
Speaker 1: Court justices when Trump was president. We've seen this intense
Speaker 1: politicization of the appointment and confirmation process as well. So
Speaker 1: we live in a world today with as much more
Speaker 1: of a team mentality, you know, the Democratic team and
Speaker 1: the Republican team, and that there's loyalty to your team
Speaker 1: you see down the world of politics. We see that
Speaker 1: in this personal lives and social media, and so Ali Larson,
Speaker 1: my co author, and I, so it would be useful
Speaker 1: to see whether that full of station has billed over
Speaker 1: to the federal courts of appeals so that the on
Speaker 1: bond process was one where there were increasing use of
Speaker 1: on Bank to have the majority political party on a
Speaker 1: circuit overturned panel decisions from the minority political party. So
Speaker 1: it was on Bank becoming a partisan political weapon, just
Speaker 1: as partisanship has been growing throughout the nation in all
Speaker 1: sorts of ways. So has on Bank been captured this way?
Speaker 1: Has it been transformed this way? So we just wanted
Speaker 1: to look at that, and it has obvious ramifications, did
Speaker 1: not just the decision making of the Federal Court of Appeals,
Speaker 1: but of sort of larger questions regarding the legiality, judicial independence,
Speaker 1: the commitments to the rule of law, the notion that
Speaker 1: judges are above politics. So for all those reasons, we
Speaker 1: thought it would be useful to take a look at
Speaker 1: how on Bank has changed over the years. So tell
Speaker 1: us at about the results of the study that you
Speaker 1: did with Professor Allison Laarson. So what we found was
Speaker 1: reassuring and troubling at the same time. I'll start with
Speaker 1: the reassuring part of what we found and I'll shift
Speaker 1: to the troubling part if that's okay. So, notwithstanding the
Speaker 1: fact that partisanship and ideology start to play a more
Speaker 1: pronounced role. When Ronald Reagan was president, we didn't see
Speaker 1: that impact on bontasis you're making up until the Trump
Speaker 1: era the last three years. So in other words, partisan splits,
Speaker 1: paris and reversals, the notion of a majority party of
Speaker 1: the circuit overturning the decisions of a minority party. We
Speaker 1: didn't see any impact with respect to the wise and
Speaker 1: polonization and partisanship for Monald Reagan through Donald Trump. So
Speaker 1: it seems that values of collegiality, judicial independence, commitments to
Speaker 1: the rule of law, that these values were very strong
Speaker 1: long and even though the judges themselves were further apart
Speaker 1: ideologically the Democratic and Republican appointees, it wasn't filling over
Speaker 1: to on bond up until two thousand eighteen, essentially. But
Speaker 1: during the Trump era, over the last three years two
Speaker 1: thousand and eighteen, two thousand nine, two thousand twenty, we
Speaker 1: saw a dramatic spike up on essentially doubling the number
Speaker 1: of partisans on bond decisions as compared to earlier eras,
Speaker 1: so statistically significant spike up and that obviously is troubling.
Speaker 1: And then the paper considers whether this is a short
Speaker 1: term phenomenon associated with things specific to Donald Trump. There
Speaker 1: are certain cases, like the monuments clause cases, the immigration
Speaker 1: cases that were tied to things that were unique to
Speaker 1: Donald Trump. Or alternatively, whether this spiked up is just
Speaker 1: that the parts and ship is finding the tactic size
Speaker 1: and we now live in this new world of partisanship,
Speaker 1: and on Bond is reflective of that new world, and
Speaker 1: it just took a while to get there, and we
Speaker 1: don't know. We'll find out over the next few years
Speaker 1: what happens. I want to break it down a little bit.
Speaker 1: First of all, how do you define a partisan split
Speaker 1: on an on bank panel? Is it all the Democratic
Speaker 1: appointed judges on one side and all the Republican appointed
Speaker 1: judges on the other? Essentially, yes, we allow for maybe
Speaker 1: one defector, but essentially you have a split where the
Speaker 1: Republicans are on one side, the Democrats are one side.
Speaker 1: Sometimes it's a perfect split, sometimes it's a near perfect split,
Speaker 1: but it's essentially a Democrat Republican split. Both the Democratic
Speaker 1: appointed judges and the Republican judges engaged in this. Yeah,
Speaker 1: one of the things to study. Fine, and I wouldn't
Speaker 1: necessarily say this is heartening, but to say that it's
Speaker 1: not a question of only Republicans are doing this to democrats?
Speaker 1: Are only democrats are doing this two republicans. There are
Speaker 1: circuits where you have a majority democratic circuit that's policing
Speaker 1: Republican panels. So this occurred on the d C Circuit
Speaker 1: in subpoena cases involving Don McGann and Michael Flynn. Occurred
Speaker 1: on the Fourth Circuits, another democratic majority circuit, in cases
Speaker 1: involving emolumous clause. So there are clear examples of democratic
Speaker 1: dominated circuits policing Republican panels. And then there are examples
Speaker 1: in the other direction of Republican dominated circuits apparently policing
Speaker 1: democratic panels. So in the Sixth Circuits, which has a
Speaker 1: majority judges appointed by Republicans, a three judge panel held
Speaker 1: in the fourtune Amendment protected the fundamental rights of basic
Speaker 1: minimum education and that Detroit schools are violating that right.
Speaker 1: And that was a democratic panel. But the Sixth Circuit,
Speaker 1: a Republican circuit, overturned that democratic panel. And then another
Speaker 1: ample was the Eleventh Circuit ruling on bond that this
Speaker 1: concerned fellows voting in Florida, concluding on bonds that fellas
Speaker 1: could not vote up voting in Florida one felons to vote,
Speaker 1: and that was done on bond by a Republican dominated circuits.
Speaker 1: How much of a difference is there in these partisan
Speaker 1: type rulings from before Trump. We studied over sixt eight
Speaker 1: decade period. So we started by looking at on bond
Speaker 1: in the nineteen sixties and then we brought it all
Speaker 1: the way up through and I'll just give you the
Speaker 1: numbers leading up to Trump. So in the decades before Trump,
Speaker 1: it is twenty five percent in eighty six eight, eight
Speaker 1: ninety six to two thousand six two thousand, eight sixteen
Speaker 1: and a half percent two thousand sixteen two thousand seventeen.
Speaker 1: And then with Trump it's thirty five artists in reversal.
Speaker 1: And that's where there's a majority of one party policing
Speaker 1: the panel, which is a majority of the other party,
Speaker 1: and twenty seven percent of the typus list who has
Speaker 1: divided almost perfectly along party lawrence. So it was going
Speaker 1: down until until Trump. Yes, it was going down until Trump.
Speaker 1: Not profoundly, you know, not necessarily statifically significantly down, but
Speaker 1: going down from Reagan until Trump and then doubling with Trump.
Speaker 1: So is that statistically significant? Oh? Yeah, We we checked
Speaker 1: out the spike up and the spike after, and the
Speaker 1: Trump ever was statistically significant. Is this possibly then a
Speaker 1: blip on the screen, a moment in time. Yeah, So
Speaker 1: this is the question we were talking about just a
Speaker 1: second ago. Where some of these cases, like the subpoena
Speaker 1: cases involving Don Again and Michael Flynn, the emoluments claus
Speaker 1: in aegration, many of the on bond cases over the
Speaker 1: last three years involved, for lack of every way, putting
Speaker 1: into Trump dockets. Okay, trump initiatives, either personal or policy initiatives,
Speaker 1: and those cases with a different president will also disappear.
Speaker 1: Whether there will be a Biden docket that will divide
Speaker 1: the courts on bond is yet to be seen. It
Speaker 1: may not happen, but this may be Trump only it
Speaker 1: maybe a blift. On the other hand, it may be
Speaker 1: that the partisan divide has finally the past. The size
Speaker 1: and the judicial independence, collegiality norms that carried the day
Speaker 1: up until two thousand seventeen have now given way to
Speaker 1: these norms of party identity and charters and decision making.
Speaker 1: And that's something that obviously we don't know for sure
Speaker 1: what's going to happen, and That's what we need to
Speaker 1: see over the next several years as to whether things
Speaker 1: stabilize and return to how they were, or whether essentially
Speaker 1: with Trump, were just in the new world and this
Speaker 1: is a time where the partisan divide is going to
Speaker 1: just still over to more and more things, including online
Speaker 1: decision making. Do you think that this shows that Justice
Speaker 1: Roberts was incorrect when he said there are no Obama judges,
Speaker 1: no Bush judges, no Trump judges. Well, it's yes and
Speaker 1: no answer if whatef Justice Roberts is saying is that
Speaker 1: the judges are committed to the rule of law and
Speaker 1: not to a political party. That seems to have held
Speaker 1: true up until two thousand and eighteen. And then the
Speaker 1: question becomes whether two thousand eight into two thousand twenty
Speaker 1: is a total transformation where we now do have this
Speaker 1: paris and divide, or whether two thousand eighteen to two
Speaker 1: twenty is just related to the Trump docket. So before
Speaker 1: two thousand eighteen, I think you can say that Chief
Speaker 1: Justice Roberts view that the judge is identified with the
Speaker 1: rule of law, norms of judicial independence and pleegiality. I
Speaker 1: think Chief Justice Roberts was right as to whether Chief
Speaker 1: Justice Roberts's right. Post two thousand eighteen, that's a little
Speaker 1: up in the air. It may be that we do
Speaker 1: have Trump and Obama judges, but let's see what happens
Speaker 1: going forward and whether the partisan divide continues or whether
Speaker 1: there's a return to normalcy. So the jury is a
Speaker 1: little bit still out on that question as well, But
Speaker 1: I think he was generally correct up until two thousand
Speaker 1: eighteen at least. Do you think that the appointment of
Speaker 1: more moderate judges by Biden might help deflect this? Well,
Speaker 1: I think what may matter the most is whether the
Speaker 1: judge is appointed by President Biden are committed to collegiality
Speaker 1: and judicial into peasant and whether they try to work
Speaker 1: as part of a circuit which is committed to not
Speaker 1: democratic goals, but committed instead of rule of law goals.
Speaker 1: So a lot of this is depends on the outlook
Speaker 1: of the buyer, and the point sees is their outlooks
Speaker 1: that they're seeking the ideologically counterbalanced Trump appointees, in which Kate,
Speaker 1: you're going to have a partisan divide and this is
Speaker 1: likely to continue, or will they instead say partisanship is
Speaker 1: a problem, I'm committed to law values, I'm going to
Speaker 1: try to mitigate this turns to partisanship, so we need
Speaker 1: to see who president buyer the points and what their
Speaker 1: orientation is. Thanks for being on the Bloomberg Law Show, Neil.
Speaker 1: That's Professor Neil Devans of William and Mary Law School.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always at the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts,
Speaker 1: Spotify and at w w W dot Bloomberg dot com,
Speaker 1: slash podcast Slash Law. I'm June gross O. Thanks so
Speaker 1: much for listening, and please tune into The Bloomberg Law
Speaker 1: Show every week night at ten pm Eastern right here
Speaker 1: on Bloomberg Radio.