A Return to Judicial Activism

What Obama’s second term means for the courts

BY ADAM FREEDMAN

Tuesday’s election victory means that President Obama will have four more years to reshape the federal judiciary. While it remains to be seen whether he can achieve any legislative victories in the face of Republican opposition, there is little doubt that he will, for the most part, get to appoint the judges of his choice.

Four justices on the Supreme Court are in their mid- to late seventies now: Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer. With past as prelude, we can expect any Obama nominees to be reliably liberal in the mold of his two appointments from the first term, Justices Elena Kagan and Sonia Sotomayor. At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But it’s also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court.

An invigorated and expanded liberal bloc on the Court could undo many important precedents. The Court’s decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 5–4 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.

The president’s reelection also has profound implications for the lower courts. Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges. By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton. Notably, this includes at least three judges of the Court of Appeals for the D.C. circuit—the court that hears most appeals of the decisions of federal agencies and, thus, one of the few institutions that can limit or block the administration’s regulatory overreach. But with Obama poised to fill three vacancies on this important court, its liberal wing will be greatly strengthened.

Unlike Supreme Court nominees, who receive intense media scrutiny, lower-court picks often fly under the radar. Obama’s true inclinations can be seen in nominees like Goodwin Liu, an outspoken proponent of using the “living Constitution” to create fundamental rights to welfare benefits; or Louis Butler, who, as a justice on the Wisconsin Supreme Court, “offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and ‘collective liability’ for lead paint manufacturers,” as Carter Wood reported at Point of Law.

To be fair, Liu and Butler were not confirmed. They demonstrate, however, Obama’s inclination to appoint liberal activists—the kind of judges who can advance progressive goals without the bother of legislation. Now, freed from any concerns about reelection, Obama has little reason not to put forward aggressively liberal judges in the hope that some of them will get through. And no doubt some will.