Notably, back in August of last year, Texas District Judge Matthew Kacsmaryk blocked the rescission of Trump’s “Remain in Mexico” policy, which forces migrants seeking asylum in the U.S. to wait in Mexico until the date of their asylum hearing. The policy was formally reinstated a week later by the Supreme Court via “shadow docket” – a legal maneuver, generally used in emergencies, that allows the court to fast-track its rulings by opting out of oral arguments.
Because Kacsmaryk’s ruling requires cooperation from the Mexican government, Vox’s Ian Millhiser noted, it stands to reason that an unelected district judge single-handedly “ordered the United States to change its diplomatic stance toward Mexico.” (Traditionally, foreign affairs lie far outside of the ambit of the judiciary.)
A similar blow to Biden’s immigration agenda came months earlier, when Texas District Judge Drew Tipton unilaterally blocked Biden’s 100-day moratorium on all deportations. The moratorium, announced just hours after Biden’s inauguration, was designed to exclude immigrants “suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States.” Still, Texas Gov. Greg Abbott called Biden’s policy a “seditious left-wing insurrection,” with Texas Attorney General Ken Paxton later filing a lawsuit to challenge it in court. By May 2021, Paxton agreed to drop the suit because the 100-day freeze had expired. But Biden has indicated no interest in attempting to revive the program.
Elliot Mincberg, a senior fellow at the People For the American Way, told Salon that he didn’t find it surprising that Trump-appointed judges are making party-line rulings across the board because of all of the work that went into choosing them.
“Trump and the Federalist Society did a particularly good job, unfortunately, of selecting judges at all levels from the Supreme Court on down who very much tow the party line,” Mincberg said in an interview. “He picked judges that are partisan, that have a very strong ideology that reflects the Republican Party position on a range of issues.”
Mincberg specifically referred to the Supreme Court’s decision last year to end the Center for Disease Control’s (CDC) eviction moratorium, first implemented in October 2020 to support millions of Americans struggling under the financial weight of pandemic. The decision, handed down via shadow docket, was widely rebuked because it put roughly 15 million renters at risk of eviction. Furthermore, the ruling was seen as highly partisan because the eviction ban had originally been issued under Trump.
“You had … at least one judge, who himself had upheld the eviction ban under Trump by the CDC,” Mincberg said. “But then, once Biden essentially we reissued it … the same judge, and in some instances, other judges, ruled that it was improper. A blatant example of partisanship in a lot of ways.”
Last year, the Supreme Court again flouted the guidance of public health experts by striking down President Biden’s vaccine mandate, which would have required employees of companies with at least 100 or more workers to get the jab or wear a mask and undergo routine testing.
In its ruling, again delivered via shadow docket, the Supreme Court hung its hat on a semantic distinction between occupational hazards and the “day-to-day dangers that all face,” with COVID, they claimed, falling into the latter category. But as Slate’s Mark Joseph Stern noted, the Occupational Safety and Health Administration, the agency tasked with enforcing the mandate, was well within its rights to enforce the rule because COVID is particularly infectious amongst people in close proximity with one another (i.e., workers).
“The agency has long regulated risks ‘beyond the workplace walls,’ including fires, excessive noise, unsafe drinking water, and faulty electrical installations,” Stern wrote. “And if the vaccinate-or-test policy is unprecedented, that is because it is in response to an unprecedented event: the deadliest pandemic in American history.”
Kenneth Manning, Chair of the Department of Political Science at the University of Massachusetts Dartmouth, echoed to Salon that “when the law is conflicting and when precedent is unclear, judges have more discretion in their decision making.”
“Vaccine mandates posed by the president of the United States united in the private sector, that’s a…very unusual situation,” Manning added in an interview.
While Biden’s COVID-19 policies were undermined by the highest court in the land, he has also faced resistance from a number conservative judges in lower courts.
Back in November, a Trump-appointed federal judge in St. Louis blocked the Biden administration’s vaccine mandate for the majority of healthcare workers in Kansas and Missouri. The next month, a Trump judge in Georgia imposed a nationwide injunction against Biden’s mandate for federal contractors after numerous states and trade groups claimed it would cause “irreparable injury” to government employees who might be let go if they opted out of the vaccine. More recently, in Texas, a Trump appointee prevented the White House from mandating that all federal employees get the jab. Similar rulings have been made in Kentucky, Louisiana, and Massachusetts.
At the same time, some mandate rulings have also been more granular, targeting specific companies, agencies, or military branches.
For example, last summer, United Airlines imposed its own vaccine mandate for all employees. But that mandate is now being challenged by a federal appeals court, which this week ordered a lower court reconsider its decision to let the mandate stand. The case originally stems from a lawsuit brought by two United Airlines employees who reportedly alleged that they qualified for religious exemptions “out of concern that aborted fetal tissue was used in making the COVID-19 vaccines.”
(It is true that fetal cell lines were used in the development of the mRNA technology behind the vaccines. But in all fairness, fetal cell lines were also used in the production of commonly-used drugs like aspirin, ibuprofen, Tylenol, Pepto Bismol, Tums, Lipitor, Benadryl, Sudafed, Claritin, Prilosec, Zoloft, and more.)
In Georgia, a federal judge is likewise preventing the Air Force from firing employees who refuse to get vaccinated for religious reasons. And last month, a judge barred the Navy from reprimanding 35 Navy Seals who filed a lawsuit against the branch after they were denied a religious exemption from its vaccine mandate. The seals, who have also condemned the use of fetal cell lines, called the vaccine an “affront to their Creator.”
Public health and immigration have no doubt become the chief battlegrounds on which Trump appointees have waged their conservative war on the letter of the law. However, the judiciary has also ventured into the realm of climate action, particularly in oil-rich states, where fossil fuel companies hold immense sway over municipal and state governments.
Last summer, a Trump-appointed federal judge in Louisiana ordered the resumption oil and gas drill leasing on public lands and waters after Biden issued a freeze on new drilling auctions. The Justice Department shortly vowed to shortly appeal the ruling, but since then, drilling approvals have reportedly reached record highs.
More recently, a Trump-appointee from Louisiana dealt another blow to Biden’s climate agenda last Friday, when he prohibited the administration from using a key climate metric used to approve drilling contracts. The metric, also known as the “social cost of carbon,” would have accounted for climate-induced disasters like hurricanes, wildfires and flooding.
While the White House can theoretically appeal decisions that flout executive authority, such maneuvers are hardly foolproof. After all, Trump appointed 54 out of the 179 appellate judges currently serving the U.S., meaning that even the appeals process is sometimes liable bias.
“If appellate courts aren’t inclined to intervene and the appellate courts agree with the trial court judge, then obviously, the judges can work together and shift the partisan policy discourse,” Manning said. “And I think that’s happening.”