The first Monday of October brings the start of another term of the U.S. Supreme Court, and fans of Justice Elena Kagan are celebrating. Liberals are hoping that the court’s newest member will offer a counterbalance to the rightward tilt of the John Roberts court. Conservatives will be working hard to hold a 5-4 edge on the big issues facing the court.
Within the federal judiciary, the Supreme Court of the United States (SCOTUS, for short) undoubtedly captures the big headlines. In the last term, the SCOTUS ruling that opened the way for corporate political contributions led to an icy face-off at the State of the Union address between President Barack Obama and Chief Justice Roberts.
While SCOTUS gets most of the ink, the lower courts do most of the judiciary’s work. In 2008-2009, the last year for which official numbers are available, the Supreme Court heard 87 cases. One step down, the U.S. Courts of Appeals dealt with more than 57,700 cases. The U.S. District Courts, the first level of the federal system, handled nearly 276,400 civil cases and more than 76,600 criminal cases. The odds that SCOTUS will decide a case first filed with a district court are tiny -- less than three in 10,000 -- so the lower courts are the last stop for most issues.
In the process, the lower federal courts are making landmark rulings. Because the makeup of those courts is very much up for grabs, Obama could have a huge impact on the judiciary and the vast majority of cases that never make it to SCOTUS.
In June, for example, U.S. District Judge Martin Feldman halted the U.S. Interior Department’s moratorium on offshore drilling in the Gulf of Mexico. Feldman held that the freeze on drilling was too broad. He ruled that the feds couldn’t shut down all of the wells because one rig failed, and “no one yet fully knows why.”
Oil producers -- and Gulf workers on their payrolls -- celebrated while the Obama administration hastily redrafted its response to the fallout from BP’s Deepwater Horizon drilling disaster.
In July, federal Judge Susan R. Bolton blocked Arizona’s tough new immigration law, which required police to investigate the legal status of every person they detained. That, she said, would increase “the intrusion of police presence into the lives of legally present aliens [and even U.S. citizens], who will necessarily be swept up” by the policy. Bolton found that the Arizona law conflicted with the federal government’s laws and policies. Her ruling broadcast a warning to other states considering similar laws.
In August, Vaughn Walker, U.S. district court judge for California’s northern district, struck down the state’s Proposition 8, which banned same-sex marriages. Walker wrote, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”
California Gov. Arnold Schwarzenegger applauded the decision, but legal observers wondered whether proponents of same-sex marriage would be able to find five votes if the case reached SCOTUS.
We all know about separation of powers from high school civics and college political science courses. We learned that the founders gave the courts independent power because they didn’t fully trust democratic rule. When decisions like these come down, however, they always strike like lightning bolts at the heart of typical battles between elected legislators and executives.
And we all know that the judiciary is independent of politics. But the lightning bolts are always political -- they are launched by judges who bring to each case their own reading of the Constitution and law, and the judges were put in place by elected officials who hoped that those readings were right.
Before Obama, Republicans held the White House for 28 of the past 40 years, and their lifetime appointments of federal judges have made a deep mark on the bench. Obama’s election sent shivers through those who closely follow the federal lower courts, for they knew that Obama would have many appointments to make.
One judge, J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, appointed by President Ronald Reagan to a circuit viewed as the nation’s most conservative, warned in a January 2009 Washington Post op-ed article that Obama’s election would bring a “takeover” of the lower courts. In the Senate, some Republican senators have been sitting on Obama’s nominees for the lower courts to try to prevent this from happening.
In a 2009 study, Washington attorney Eric R. Haren wrote that conservatives held the majority on most of the dozen federal courts of appeals, but he argued that “these courts are up for grabs, and Obama’s impact on them could be sweeping.” Some analysts have concluded that Obama had already tipped two appellate courts to a majority appointed by Democrats.
By the time his first term ends, Obama will have had the chance to reshape many more federal appeals courts -- perhaps every one if he serves two terms in the White House. That could bring an impact even larger and more lasting than whatever will happen to SCOTUS.
Huge policy battles with deep implications continue to brew in the states. We surely haven’t seen the last of cases like offshore drilling, immigration and same-sex marriage. With the lower courts, the last stop for more than 99 percent of all cases, Obama’s ability to reshape the judiciary beyond SCOTUS could well prove one of his most quiet but lasting legacies.
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