Federal judges — those who preside over the US district courts and courts of appeals, along with the Supreme Court — are appointed by the president for a lifetime tenure. As a result, these judges have a substantial amount of power when it comes to decisions about reproductive health care for Americans, civil rights, voting rights, immigration, and more. Judges and their decisions can also extend a president’s legacy far beyond the term of commander in chief.
In the wake of the Supreme Court’s Dobbs decision to overturn Roe v. Wade, judges appointed by former President Donald Trump have sparked controversy with decisions on reproductive health care access. Matthew Kacsmaryk, for example, a US district judge in northern Texas (who has a background as a conservative Christian activist) issued a decision that would have revoked the FDA's approval of mifepristone last year. However, last month, the Supreme Court preserved access to the medication, one of the two drugs that make up the abortion pill.
It’s a rare feat for a case to make it to the Supreme Court, but it's these blockbuster moments we tend to hear the most about. Truth be told, federal judges, like Kacsmaryk, regularly make decisions in cases that never reach the Supreme Court but still affect communities across America. Aside from the mifepristone push, Kacsmaryk has a history of conservative decisions on issues such as immigration and LGBTQ+ rights, demonstrating the outsize impact a federal judge can have on social and political issues that impact millions of lives.
At the same time, on a separate judicial track, state courts have also become fertile ground for litigating abortion access. Legal jargon and differentiating between federal and state judiciaries can get complicated, but judicial decisions are key to reproductive health care access. Here, with help from two legal experts, Teen Vogue tries to break it down for you.
What does a federal judge do?
According to Olatunde Johnson, the Ruth Bader Ginsburg '59 Professor of Law at Columbia Law School, “They generally review cases that arise under the Constitution, the US Constitution, or federal statutes. They also have other powers to review cases that arise and disputes between citizens of different states and a few other matters. So, generally, what they're doing is adjudicating disputes between individuals, groups, states; they handle criminal cases as well as civil cases.”
It's also important to know that federal courts are "courts of limited review," Johnson tells Teen Vogue. They hear cases that arise under federal law, along with a few other types of disputes, whereas the state court system has a much broader scope, she explains. In the federal court system, Johnson notes, "you have district courts that are the courts of first entry. If you are filing a case for the first time, if you're filing a complaint — let's say you want to challenge a statute that you think is unconstitutional — you would bring it to a district court. If you lose or win in a district court, there can be the power to appeal that to an appellate court,” which is also known as a circuit court. “The Supreme Court has a right of review," she adds, "and it has a very limited right to appellate reviews.”
Johnson explains further, “Most of the Supreme Court’s docket consists of ‘certiorari’ reviews, so the court has discretion in certain cases that it thinks are important or where the decision has an impact on all the other circuits and district courts. Very few cases relative to the cases that are in district court or appellate court will make it to the Supreme Court.”
That said, “The US Supreme Court can also take cases for review from state supreme courts," Johnson says, "but it can only take certain kinds of cases. It has to turn on some kind of federal question.”
What’s the difference between state and federal courts? And how is that playing out with reproductive health care?
Federal court decisions can quickly impact the entire country. With reproductive health care access, for example, this is playing out in the differences between the federal mifepristone case and Alabama's state court IVF case, in which the Alabama Supreme Court ruled that frozen embryos are children. Though a state supreme court decision is only binding on that specific state, the first-of-its-kind ruling on embryos in Alabama sent shockwaves across the nation, as it could lead to similar cases in other states, especially those with a history of restricting reproductive health care access.
Says Madiba Dennie, an attorney, columnist, professor, and author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, “Over the past decade or so, in particular, we've seen people in federal courts seeking rulings that could impact the whole country, like giving a nationwide mandate. That's what we're seeing in the mifepristone case," she explains: "Going to one district court, from this one guy in Texas that Donald Trump got onto the federal bench, and trying to say that this one guy has the authority to stop nationally the distribution of a pill that people have been using to manage their reproduction for decades.”
How is the federal judiciary set up?
Historically, the president and their administration work with members of Congress to source candidates for federal judge nominations. Once nominated, contenders for federal judgeships must be confirmed by the US Senate before their appointment to a federal bench, including the Supreme Court.
It’s no secret that presidents of both parties have used their picks to further the agenda of their administration, and this has led to contentious judicial confirmation hearings and battles between members of the Senate Judiciary Committee. In 2016, for instance, now Attorney General Merrick Garland was nominated to fill the seat formerly held by the late Justice Antonin Scalia, who died suddenly during the last year of President Obama’s second term. But then Senate Majority Leader Mitch McConnell blocked Garland’s nomination, saying the president chosen in the 2016 election should nominate the next Supreme Court justice.
Notably, in 2020, after the death of Supreme Court Justice Ruth Bader Ginsburg, McConnell went back on his 2016 actions, rushing the confirmation of Trump-nominated Justice Amy Coney Barrett.
For years, a guiding force in conservative attempts to shape the judiciary has been the Federalist Society, a network of Republican lawyers that started at Yale, Harvard, and the University of Chicago in 1982, then quickly became a breeding ground for conservative legal thought. Its members have risen in the ranks all the way up to the Supreme Court. Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett (all Trump appointees) have in some way been affiliated with the organization, as have justices Clarence Thomas, Samuel Alito, and John Roberts.
“It's important to note that they have a carefully planned pipeline … and stacking the bench with them, especially as they rely on this purported method of legal interpretation called originalism,” Dennie says, “which is what they use to say, ‘Actually, the Constitution means today whatever we say people thought it meant when it was enacted hundreds of years ago, and so our rights do not go farther than that now.'”
How have Biden and Trump handled federal judgeships?
Trump, with the help of McConnell, reshaped the federal judiciary, so much so that it has become a core facet of his presidential legacy — and something he pointed to while taking credit for overturning Roe. During his four years in office, Trump appointed 226 federal judges in total, and almost as many appeals court judges as former President Barack Obama did in all eight years of his presidency, according to Pew Research Center. When it comes to the Supreme Court, in particular, with three confirmed nominees, Trump appointed the highest number of justices on the high court since former President Ronald Reagan.
In turn, President Joe Biden has made his judicial nominations a top priority. As it stands, most US federal judges are, as Dennie puts it, “white dudes who were prosecutors or worked for big corporate law firms protecting the interests of the wealthy.”
And, Dennie explains further, “that perpetuates itself when the bench is filled with only that kind of person. It influences what kind of rulings they hand down, how favorable or hostile they might be to labor rights or reproductive rights, or voting rights. It matters who is making these decisions, also who is simply in the room when these decisions are made.”
Says Johnson, “Traditionally, even Democrats had nominated a lot of judges from the same profession. People, for example, who are former US attorneys, that are prosecutors.”
President Biden has confirmed more than 200 federal judges, and his choices stand out for their diversity in background and work experience. According to the White House, nearly two-thirds of Biden’s confirmed judicial appointees are women and nearly two-thirds are people of color. The president has also focused on appointees with backgrounds as public defenders and work in reproductive health care access, civil rights, and labor — all areas of expertise that have been underrepresented on the federal bench.
“Every president that comes in tries to shape the judiciary in some way to further a set of values,” says Johnson. “What is distinct, in my view, about President Biden — and he has said this, he’s announced this — is one, he has cared a lot about the kind of diversity of experience that judges have.” Biden also said, she adds, that he “wanted to nominate people who had experience in civil rights law or folks who had done work to enforce voting rights or education, housing…. Reproductive rights is another area we’ve seen.”
Biden appointee Julie Rikelman, a veteran reproductive rights lawyer who represented the abortion clinic in the case that led to the overturning of Roe, is the first immigrant woman and first Jewish woman on the US Court of Appeals for the First Circuit in Boston. Biden also nominated Nancy Abudu, who previously litigated civil and voting rights cases and worked at the Southern Poverty Law Center; she became the first Black woman on the US Court of Appeals for the 11th Circuit in Atlanta. Another Biden appointee is labor lawyer Nicole Berner, who was previously general counsel at the Service Employees International Union, or SEIU, labor union. Berner is the first openly LGBTQ+ judge to serve on the US Court of Appeals for the Fourth Circuit in Richmond, Virginia.
To cement his judicial legacy, President Biden released a plan for Supreme Court reform including a proposal that calls for term limits for justices, a code of ethics for justices, and a constitutional amendment that would bar rulings of presidential immunity. The plan was released with a Washington Post op-ed in which the president touted his experience as a senator and the chairman and ranking member of the Judiciary committee.
“ I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today. I have great respect for our institutions and separation of powers,” he said. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”
What is the judicial reform movement?
Judicial reform efforts have gained steam since the Trump administration, with liberal advocates saying they seek to push back against the politicization and conservative takeover of the courts. “There's a lot more attention now on reforming the courts than there has been in decades, I think, and we've seen a couple main avenues for that proposed,” says Dennie, who also mentions imposing term limits and expanding the Supreme Court.
“The idea that the composition of a court should depend on when someone happens to die feels like no good way to run a system,” she says. “Similarly, it doesn’t make any sense for this tiny, tiny handful of people with this narrow set of expertise and experience to be making decisions for the whole country.”
Groups like Demand Justice, specifically, advocate to, as stated on its website, “restore balance to the Supreme Court” in terms of ideological viewpoints by expanding the number of justices, “depoliticize the court by creating term limits for justices,” “require justices to abide by meaningful ethics rules,” and for more “access to justice in the lower courts.”
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