🗣️ Federal appeals courts have gotten more partisan

Federal judges have always been appointed by ruling political parties. But for decades it seemed they largely stayed above the partisan fray. 

That has changed, according to a new study by William & Mary law professors Neal Devins and Allison Orr Larsen. 

  • They looked at 950 en banc cases, dating back to the 1960s: There were almost no patterns of partisan splits among judges at each level or obvious partisan reversals of lower court decisions. This was as true in the ‘60s and ‘70s as it was in the ‘80s and ‘90s, after Reagan introduced a more conservative strand of judges. 

  • Then, Trump got involved: He appointed 226 federal judges in four years, about 50 more than our last one-term president, George H.W. Bush. Of the 226, 54 were appeals court judges. 

  • And everything changed: Devins and Larsen found that 35% of en banc decisions between 2018 and 2020 “involved either a partisan reversal or partisan split.”  

There was partisanship by judges from both parties

They found in the study that Democratic-appointed judges and Republican-appointed judges were about as likely to create the partisan reversals or splits in en banc cases. 

  • These cases are still fairly rare. En banc decisions, which involve the entire body of judges of a given court, happen in only about .20% of cases.

The Verdict

The study’s authors were unsure whether the increased partisanship will be a blip or the beginning of a trend. The last few weeks, several appeals court judges have announced they’ll be going into retirement, opening up positions for Biden appointments.