Trump’s Mark on Ninth Circuit Tested as Challenges Progress

The influence of President Donald Trump’s judicial picks on the nation’s largest appeals court faces an initial test as the historically liberal San Francisco-based bench weighs challenges to the administration’s agenda.

Trump reshaped the US Court of Appeals for the Ninth Circuit during his first term. He flipped four seats once held by judges tapped by Democrats and left the court with nearly as many Republican-appointed active judges as Democratic ones.

The appeals court’s more balanced composition increases the odds that progressive litigants challenging Trump’s second term agenda might wind up with a panel of majority Republican-appointed judges. The Ninth Circuit has 16 Democratic and 13 Republican appointees.

It also makes their chances of winning a case heard en banc—a process where a randomly selected group of active judges rethinks a panel ruling—more of a wildcard. The court has said it will reconsider a trial judge’s ruling blocking the administration from deploying troops into Portland, Ore.

The Ninth Circuit was more appealing to litigants challenging policies during the first Trump administration, given its composition at the time, said University of Pittsburgh law professor Arthur Hellman. “Now, there are several other circuits that look at least as attractive, if not more so,” Hellman said.

And ideological changes to the circuit courts may be dissuading progressive litigants from choosing to file as many cases in that circuit.

The Ninth Circuit is the largest appeals court. But the majority of major challenges against the second Trump administration have been filed in the DC Circuit, followed by the Boston-based First Circuit, according to Bloomberg Law’s litigation tracker, which includes significant cases against the executive branch.

“When you have a case that can be brought anywhere in the country, as much of these are, why would you want to take a chance on the Ninth Circuit?” Hellman asked.

‘Hard Pivot’

The first Trump administration inherited a Ninth Circuit with more than twice the number of Democratic-appointed judges as Republican appointed ones, plus several vacancies. Trump then installed 10 judges on the court between 2018 and 2020.

One sign of change since: the Ninth Circuit was the eighth most reversed court out of eleven appeals courts, excluding the DC and Federal Circuits, last Supreme Court term. In comparison, the Ninth Circuit had the highest reversal rate from 1994 to 2015, according to data from Brian Fitzpatrick, a Vanderbilt University law professor who specializes in federal courts.

The Supreme Court reversal data as an early indicator that the Ninth Circuit is becoming more ideologically balanced—or at least more in line with the US Supreme Court, which has a 6-3 conservative majority, Fitzpatrick said. Fitzpatrick’s data is based on final decisions on the merits of cases and doesn’t include interim emergency orders.

“These recent appointments that we’ve seen have firmed up the mainstream numbers, and I think now the court is just not as out of step as it used to be with the US Supreme Court,” he said.

With the confirmation of Eric Tung, his first Ninth Circuit pick of his second term, Trump has appointed more than a third of the active bench, and 11 of the court’s 13 Republican-picked judges. The last time that court that many Republican appointees was in 1996, according to Hellman’s research.

“It is a really hard pivot to be honest with you,” Fitzpatrick said.

That pivot appears to have staying power, as judges choose to retire during administrations that match the party of the president who appointed them. The court remained at a 13-16 ideological split through the Biden administration, with all of Joe Biden’s nominees to the court filling seats vacated by other Democratic appointees.

The second Trump administration has notched some preliminary wins at the Ninth Circuit, which covers federal trial courts in California and eight other western states.

In September, a three-judge panel lifted most of a ruling against Trump’s executive order suspending refugee admissions, after finding the government was likely to win that part of the case. All three judges on the panel were appointed by Republican presidents, including two George W. Bush appointees and one of Trump’s picks.

Last month, a split three-judge panel of two Trump appointees and a Clinton appointee paused a ruling that temporarily blocked the administration from deploying National Guard members to Portland.

The full appeals court later vacated that ruling and agreed to rethink it en banc. Under the Ninth Circuit’s procedures, the case will be reconsidered by a panel of 10 randomly selected active judges, plus the court’s chief judge. The rehearing hasn’t yet been scheduled.

The court’s unique, random selection procedures mean a Republican majority en banc court is possible.

In late 2019, for instance, seven Republican-appointed judges were picked to rehear a challenge to the Trump administration’s so called ‘abortion gag’ rule. The court later ruled 7-4, along those ideological lines, in favor of the administration.

“That process does introduce this element of uncertainty,” said Susan Haire, a University of Georgia political science professor who studies appeals courts.

Muted Impact

Still, the Ninth Circuit has remained a destination for challenges to the second Trump administration’s policies, including by West Coast states filing in their home districts. The party of judge’s appointing president also doesn’t necessarily dictate the outcome of their rulings.

All of the district courts within the Ninth Circuit still have a majority of Democratic appointees, making those courts more favorable venues for lawsuits prior to appeal.

And the impact of the recent infusion of Trump appointees on the Ninth is blunted by the significant number of semi-retired senior judges on the court who still hear cases and by the structure of the appellate process.

“The odds are that the panels will not be made up entirely of all judges appointed by Trump, but in fact kind of a mix here and there,” Haire said. “At least at the appellate level, unlike district courts or certainly the Supreme Court for other reasons, it’s going to be more muted.”