It’s hard to overstate how broken the federal judiciary is. The hard-right Federalist Society types Trump stuffed the courts with are not there to be independent or to ensure justice. Rather, these jurists are there to ensure right-wing policy preferences get enacted while Democratic goals get thwarted. That’s leading to sweeping and sloppy rulings that take a sledgehammer to regulations issued by President Joe Biden’s administration. And Donald Trump's victory in 2024 would make this landscape even worse.
Let’s start with the U.S. Court of Appeals for the Eighth Circuit, which has been unbalanced for decades. Democratic appointees haven’t outnumbered Republican ones since 1985, and Trump got to fill four vacancies. Now, the Eighth Circuit has only one Democratic appointee, Jane Kelly, who was put on the bench by President Barack Obama in 2013.
While it would be improbable that Kelly would step down during a second Trump administration, a 2024 Trump victory would likely give Trump the chance to shore up his stranglehold on the courts by swapping out some older jurists. James B. Loken was put on the bench by George H. W. Bush in 1990, and is 84 years old. Loken could choose to take senior status. Senior status lets a judge have a reduced caseload and opens a vacancy on the court. Judges Duane Benton and Bobby Shepherd, both George W. Bush appointees, are both over 70 and could choose to do the same.
Of course, the current composition of the Eighth Circuit is bad enough, and it just gave us an incomprehensible ruling on the Biden administration’s latest student debt relief plan. Red states have continued to race to friendly courts to attack the administration’s efforts to provide student loan forgiveness after getting the Supreme Court to block a plan to discharge $10,000 of federal student loan debt for millions of borrowers last year.
After that loss, the administration pivoted, issuing a rule that wasn’t across-the-board loan forgiveness, though some would receive loan forgiveness under the rule. For many people, though, all that changed was how payments would be calculated based on income, how accrued interest was dealt with, and how periods of loan deferments were considered when calculating loan forgiveness.
But even that was too much for Arkansas, Florida, Georgia, Missouri, North Dakota, Ohio, and Oklahoma, which promptly sued to stop the plan. A lower court’s ruling blocked only the loan forgiveness portion of the rule, but earlier this month, the Eighth Circuit enjoined all of it. As Chris Geidner explained at Law Dork, how the order is written “appears to block the government from implementing loan forgiveness under any other rule [and] under past plans … In other words, if you are a borrower in an income-contingent repayment plan, Friday’s order appears to block the government from doing virtually anything to forgive your loan while the injunction remains in place.”
The problem here is that there are already long-approved, income-contingent repayment plans, ones where people have made payments for years, which are supposed to result in loan forgiveness after a certain point. Now, as Secretary of Education Miguel Cardona explained, the injunction as written could deny forgiveness guaranteed to people who have repaid their loans faithfully for 25 years. Because this is confusing, potentially devastating for borrowers, and seems well beyond the scope of the lawsuit, the government requested that the court clarify the scope of the injunction. And on Aug. 19, in a one-line, unsigned order, the Eighth Circuit denied the request.
In theory, a sloppy, dismissive ruling like this would be addressed by the Supreme Court. However, conservative jurists have very little to fear, given the highest court in the land is also engaged in the same practice.
Earlier this month, the conservative majority on the Supreme Court blocked the entirety—all 423 pages—of the administration’s Title IX sex discrimination rule from going into effect. Twenty-six red states had challenged the rule in a variety of lawsuits because it provides protections for transgender students and added discrimination based on gender identity and sexual orientation to the definition of “sex discrimination” in an education setting.
Two lower courts had blocked the entirety of the rule despite the challenges being focused only on the provisions relating to transgender, gender identity, and sexual orientation protections. The Biden administration asked the federal appeals courts to allow the remainder of the rule to go into effect while those challenges played out, but the appeals courts refused. The rule then met a similar fate at the Supreme Court.
Justice Sonia Sotomayor’s dissent from the denial of a request for a stay highlights how absurd this is, pointing out that the unchallenged provisions in the rule have nothing to do with any of the things that make this a culture-war fixation for conservatives. The rule requires, for example, that schools provide pregnant students with things like breaks during class for breastfeeding. Another portion bans schools from retaliating against people who file complaints under Title IX.
The states that sued did not allege they would be harmed by the whole of the rule or by these provisions. Instead, their alleged harms flow only from the provisions they challenged, such as believing their free-speech rights would be violated if they can’t make bigoted statements about gender identity.
Regardless, just as with the Eighth Circuit’s treatment of student loan forgiveness, the Supreme Court doesn’t care. There’s no penalty for this behavior, no downside to the court or the justices. Unless we manage to keep Trump out of the Oval Office again while also getting Democrats to rally around court reform, the federal courts will continue to be helmed by outcome-driven ideologues who don’t care what chaos they create.
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