Can Biden Fix the Courts That Trump Broke?
There is no progressive future without a serious fight to reclaim the judiciary from the grips of conservative judges.
“While previous Republican administrations tried to break government, Donald Trump tried to break democracy. He did this boldly and brazenly, by attacking elections, and he did it less boldly but no less brazenly, by working alongside Mitch McConnell to take over the unelected branch of government that sets the rules for all the others: the federal judiciary. That branch is now stuffed with conservative ideologues masquerading as jurists.”
Making the case that there is no progressive future without a serious fight to reclaim the judiciary from the grips of conservative judges, Mystal evaluates whether Biden can fix the courts that Trump broke: Happily, there is a solution, and that solution is to expand the lower courts.
Congress has used its constitutional authority throughout history to expand the federal judiciary. Historically, these lower court expansions were bipartisan: As the country grows in population, so does the number of lawsuits. Adding judges is just a thing we used to do to keep the judiciary running smoothly. But since 1990, when the last judgeship bill was passed, the US population has grown by a third; the number of district court cases has grown by 38 percent; and the number of cases involving a felony defendant has grown by 60 percent. The number of judges has not changed.
“I absolutely believe that if Trump had won reelection and McConnell had hung onto the Senate, Republicans would be working on court expansion right now,” writes Mystal. “There just aren’t a lot of vacancies left in the federal judiciary. Republicans can always find some casus belli for stacking the courts with conservative judges. The only question is whether Democrats will ever realize there’s a war, and they’re losing it.”
“To balance out decades of inequity, Biden’s judicial appointments shouldn’t ‘look like America;’ they should overrepresent the kinds of Americans routinely excluded by Republican administrations,” he continues. “You can’t balance a seesaw by standing in the middle when an elephant is sitting on one side.”
Read the full cover story here. Mystal, who covers the courts, the criminal justice system, and politics for The Nation, has also recently reported:
Biden’s recently announced commission to study court reform isn’t designed to offer solutions—it’s designed to be an excuse to do nothing.
Derek Chauvin’s defense team is hoping that the 1989 Graham v. Connor ruling will be his ticket to acquittal.
For one of the first times in memory, police are testifying against one of their own. But will it lead to an actual conviction?
ABOUT Elie Mystal
Elie Mystal is The Nation’s justice correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine’s monthly column, “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. A graduate of Harvard College and Harvard Law School, Mystal was previously the executive editor of Above the Law and a former associate at Debevoise & Plimpton. He’s a frequent guest on MSNBC and Sirius XM.
Founded by abolitionists in 1865, The Nation has chronicled the breadth and depth of political and cultural life from the debut of the telegraph to the rise of Twitter, serving as a critical, independent, and progressive voice in American journalism.