Introduction
As America begins the crucial election year of 2024, we must all carefully consider the important consequences if Donald Trump, as opposed to Joe Biden, nominates our federal judges beginning in 2025. Each had nominated and seen the Senate confirm more than 165 judges they selected by this point in their presidency, with hopefully more to come for Biden this year. Those new federal judges and justices have had an enormous impact on all of our rights, and the same will hold for 2025 and beyond.
Below we consider the crucial significance of Biden vs Trump judges in five specific areas: abortion and reproductive freedom; gun safety; environment and health; workers’ rights; and democracy and voting. In each, Trump judges have harmed or devastated our rights, while Biden judges have sought to protect them. The stakes in the 2024 election for all of us in these areas, and many more, are enormous.
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Abortion and Reproductive Freedom
As a direct result of the Republican Senate confirming three Trump nominees to the Supreme Court, the Court overturned Roe v Wade and deprived all American women of the constitutional right to abortion and reproductive freedom. Trump nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast decisive votes in the 5-4 v Jackson Women’s Health Org. decision that upheld a restrictive Mississippi abortion law and overturned Roe.
Both before and after Dobbs, Trump lower court judges have also issued rulings harming reproductive choice. For example, Trump judge James Ho cast the deciding 2021 vote in US v Texas, which allowed a harmful Texas law that set up a “bounty hunter” enforcement scheme to go into effect. Under that law, any person can seek to punish someone who performed or helped someone get an abortion by filing a civil lawsuit and obtain at least $10,000 plus fees and costs. In fact, Texas Attorney General Ken Paxton recently encouraged Texans to use the law against anyone who helped Kate Cox, who left Texas to obtain an abortion in the tragic case where Texas state courts refused to permit an abortion of a fetus with a fatal abnormality that was determined medically necessary for her to have children in the future.
Since Dobbs, Trump district judge Matthew Kaczmaryk has taken aim at a method used by millions of women to obtain an abortion by issuing an injunction earlier this year that effectively banned the abortion pill mifepristone, even though it was approved by the FDA decades ago. On appeal, Trump judges J and Cory Wilson, two Trump Fifth Circuit judges supported a ruling that severely restricted the abortion pill, although it did not go quite as far as the district court injunction. Astonishingly, Ho argued that doctors challenging abortion can somehow claim “aesthetic injury from the destruction of unborn life.” The Supreme Court stayed these rulings as it considers the case, and is expected to issue a decision by July 2024. Reversing the FDA’s approval of the abortion pill would have nationwide effects even in states that permit abortion, harming reproductive rights and “health care for millions” of women. This demonstrates the dangerous impact of Trump judges.
On the other hand, despite the limits on reproductive freedom imposed by Dobbs and restrictive state laws, Biden judges have had some positive impact on reproductive rights. This occurred in a case involving the federal Emergency Medical Treatment and Labor Act (EMTLA), which, according to the Justice Department, guarantees access to abortions when necessary to stabilize emergency medical conditions that put a person’s health in serious jeopardy, even in states that have severely restricted abortion. Idaho argued to the contrary, and a three-judge panel of Trump judges let Idaho enforce its restrictive law as the case went forward.
The Justice Department then obtained a full court rehearing by eleven judges to consider that issue. Biden Ninth Circuit judges Lucy Koh and Salvador Mendoza cast deciding votes in a 7-4 ruling that blocked enforcement of Idaho’s law and preserved abortion rights in emergency situations while the case goes forward. In response to Idaho’s request, however, the Supreme Court has recently effectively reinstated the restrictive Idaho law and will hear the case on the merits in April. this year. The reproductive rights and health of countless women will be at stake.
Gun Safety
As firearms violence takes an increasing toll of deaths and injuries around the country, more and more states and local governments have enacted laws to promote safety by restricting firearms. The three Trump justices on the Supreme Court, however, cast the deciding votes in an extremely harmful 6-3 Court ruling in the New York State Rifle & Pistol Association v case in 2022. Bruen not only struck down an important New York state gun safety law, but also established a restrictive new test requiring that in order for a gun safety law to be upheld, it must be shown that it is analogous to “historical” firearms regulations in the 1800s or before.
Both before and after Bruen, Trump lower court judges have thrown out key gun safety provisions around the country. For example:
- Trump Judge Julius Richardson wrote a 2-1 decision after Bruen that struck down a Maryland law calling for background checks and training for people who want to buy handguns.
- Trump Judge Kenneth Lee issued a 2-1 ruling before Bruen that invalidated California’s ban on high-capacity ammunition magazines, which was later reversed by the full Ninth Circuit.
- Trump Judge Ryan Nelson wrote a 2-1 decision that overturned a pre-Bruen injunction blocking a Trump administration rule that made it easier to distribute dangerous 3-D and “ghost” guns.
- After Bruen, Trump judge Cory Wilson wrote a unanimous decision, also joined by Trump Judge James Ho, that ruled unconstitutional a federal law that prohibits someone subject to a domestic violence restraining order from possessing firearms. The Supreme Court is reviewing the case this year, with a decision expected by early July.
On the other hand, judges nominated by President Biden have written or voted in favor of a number of important decisions after Bruen that have upheld significant gun safety provisions. For example:
- Biden judge Eunice Lee co-wrote a unanimous ruling that allows continued enforcement of an important post-Bruen New York gun safety law, involving licensing provisions and prohibitions on carrying guns in “sensitive” areas as the courts process a challenge to it.
- Biden Judge David Urias denied a pro-gun group’s request to block enforcement of the New Mexico governor’s order restricting guns in parks and playgrounds.
- Biden Judge Lindsay Jenkins rejected a pro-gun group’s motion to block enforcement of an Illinois law that restricts purchase and possession of dangerous assault weapons and ammunition.
- Biden Judge Regina Rodriguez upheld the federal law that prohibits firearms possession by someone convicted of a felony.
Although the Supreme Court will rule on some of these and other gun safety cases in the future, as in other areas, district and appellate judges will likely decide most of them. The courts’ track record makes clear that despite restrictive Supreme Court standards, Biden judges will likely uphold many reasonable laws and regulations to promote gun safety, while Trump judges will probably continue to invalidate important gun safety provisions.
Environment and Health
Courts play a crucial role either helping to protect our health and environment or allowing big corporations and others to harm these important interests. It makes a huge difference to our health and safety who our federal judges are and will be in the future; federal judges nominated by Trump have all too often jeopardized our health and environment, while Biden judges have helped protect them. For example:
- Trump justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in a ruling that made it much harder for the EPA to adopt rules concerning climate change without explicit authorization from Congress.
- Trump judges Justin Walker and Greg Katsas struck down federal agency rules to improve fuel efficiency and cut down air pollution from truck trailers.
- Trump judges Amul Thapar and Joan Larsen issued a 2-1 ruling that reversed a district court that had required an agency to consider several environmental laws before approving an oil spill plan.
- Trump judge Larsen stopped citizens’ groups from raising objections about threatened air pollution from a company’s natural gas pipeline in Ohio and Michigan that had been approved by a state agency.
- Trump judge Julius Richardson wrote a 2-1 decision that reversed a review board decision and denied black lung benefits to a retired coal worker whose work in the mines caused a permanent respiratory disability.
On the other hand, Biden judges have issued or joined important rulings that have protected the environment and health. For example:
- Biden judge Veronica Rossman provided the deciding vote to reject a federal agency attempt to exempt drilling and other operations from a rule that regulates air pollution caused by company projects.
- Biden judge Michelle Childs wrote an opinion upholding an EPA rule that requires power companies to cut pollution they cause that blows across state lines and harms air quality. The Supreme Court will review the case this year.
- Biden judge Charlotte Sweeney ruled that a citizens’ group could proceed with claims concerning Colorado limestone mining that it contended was harming health, safety, and the environment.
- Biden judge Toby Heytens wrote a 2-1 decision that reversed a Trump district judge and permitted a South Carolina group to file a Clean Water Act suit challenging harmful pollution.
- Biden judge Stephanie Davis cast the deciding vote to uphold black lung benefits for the widow of a deceased coal miner.
Whether it is Joe Biden or Donald Trump who nominates federal judges in 2025 and beyond will make a huge difference to our environment and health.
Workers' Rights
Whether the specific issue is job discrimination, minimum wage and overtime pay, union organizing, or more, federal courts play a critical role in protecting workers’ rights against big corporations and others. Federal judges nominated by Donald Trump, as opposed to those nominated by President Biden, have markedly different records in this area, with Trump judges favoring corporations and employers and Biden judges enforcing laws that protect the rights of workers.
Both at the Supreme Court and in lower courts, Trump judges have dramatically harmed the rights of workers in numerous decisions. For example:
- Trump justice Neil Gorsuch wrote a 5-4 decision that bars millions of workers from banding together to pursue claims of federal wage and hour violations and requires them instead to pursue individual arbitration claims. Gorsuch was also the deciding vote in a 5-4 ruling that overturned prior precedent and made it harder for public sector unions to organize.
- Trump justices Brett Kavanaugh, Amy Coney Barrett, and Gorsuch provided the deciding votes in a Supreme Court ruling that invalidated a California rule giving unions access to farm property to organize farmworkers.
- Trump judge Robert Luck wrote a 2-1 decision that upheld the dismissal of a Georgia county worker’s age discrimination claim despite a supervisor’s remark that he was “tired of looking at all these old people.”
- Trump judge Steven Menashi cast the deciding vote in a 2-1 ruling upholding the dismissal of a Connecticut worker’s claim that the corporation he worked for violated state minimum wage.
- Trump judge Amy St. Eve reversed a district court ruling that allowed a class action on behalf of almost 2000 Illinois women to proceed in challenging a hostile work environment, including sexual harassment, at a county facility.
- Trump judges Jonathan Kobes and Ralph Erickson affirmed the dismissal of a Missouri auto worker’s complaint that he was illegally fired in retaliation for reporting safety problems at the plant where he worked.
- Trump judge Kevin Newsom wrote a decision, joined by Trump judges Elizabeth Branch and Britt Grant, that upheld the dismissal of a Georgia Black woman’s job bias claim and made it much harder to prove job discrimination, at least in the Eleventh Circuit including Florida, Georgia, and Alabama. A dissenting judge wrote that the ruling “drops an anvil on the employer’s side” in job bias cases.
In contrast, Biden nominees have written or cast deciding votes in numerous decisions that have protected workers’ rights around the country. For example:
- Biden judge Veronica Rossman reversed a lower court and held that a Utah employee should have his day in court to try to prove that his employer had illegally failed to accommodate his disability.
- Biden judge Gustavo Gelpi ordered a lower court to ensure that a New England corporation properly provide overtime pay to thousands of eligible employees.
- Biden judge Jennifer Sung mandated enforcement of a National Labor Relations Board decision against a corporation guilty of anti-union activity in California, including refusing to rehire employees who had joined the union.
- Biden judge Dana Douglas upheld a lower court ruling that former patients at a rehabilitation facility could proceed with a collective action against the entity that required them to work for outside businesses for no wages at all.
- Biden judge Rossman reversed a lower court Trump judge and gave a Frito-Lay employee the opportunity to prove his age discrimination claim.
- Biden judge Candace Jackson-Akiwumi cast the deciding vote to give a former University of Wisconsin employee the opportunity to prove that he was illegally fired in retaliation for raising job discrimination complaints.
- Biden judge Toby Heytens reversed the dismissal of a complaint by a North Carolina Black man that he was illegally fired because of his race.
- Biden judge Ketanji Brown Jackson (later confirmed to the Supreme Court) wrote a decision that overturned action by Trump officials and restored federal workers’ rights to bargain with employers about working conditions.
These cases illustrate the tremendous impact that federal judges have on workers’ rights and how important it is who nominates them. The coming year will determine whether it is Biden or Trump who nominates judges in the future.
Voting Rights and Democracy
Federal courts often become involved in disputes about voting rights and democracy. The Supreme Court has a number of such cases on its docket this year, including cases that could directly affect the fairness of the 2024 election. Previously, Trump judges have written or cast key votes in rulings that have harmed these important interests, while Biden judges have generally sought to protect them.
Trump justices and judges have seriously harmed the protection of minority voting rights afforded by the Voting Rights Act. In addition, particularly before the 2020 election, they have often made it more difficult for all citizens to cast a vote that counts. A few examples include:
- The three Trump justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) cast deciding votes to uphold Arizona practices that harm minority voters and make it harder to challenge such practices under Section 2 of the Voting Rights Act.
- Kavanaugh and Gorsuch cast the deciding votes in a 5-4 ruling that federal courts cannot consider challenges to partisan gerrymandering.
- In one of numerous similar cases around the country Trump judge Steven Grasz cast the deciding vote to effectively block the counting of many mail-in votes in Missouri before the 2020 election.
- Trump judge Elizabeth Branch wrote a 2-1 decision that upheld an Alabama voter ID law, even though it was undisputed that minority voters were twice as likely as whites to lack required ID.
- Trump judge David Stras wrote a devastating 2-1 opinion ruling that civil rights groups and other private plaintiffs cannot bring lawsuits charging voter discrimination under Section 2 of the Voting Rights Act. For now, the decision applies only in the Eighth Circuit, including Arkansas, Minnesota, Missouri, Iowa, Montana, and North and South Dakota.
Since Biden became President, democracy has faced new threats from the attempted January 6 rebellion and efforts to overturn the results of the 2020 election. In addition to other voting matters, Biden judges have played an important role in several such cases, including one where a Trump judge dissented and the Supreme Court will hear the case. Specifically:
- Biden judge Florence Pan reversed a Trump district judge and ruled that January 6 rioters can be prosecuted for obstruction of official proceedings—the Congressional vote count after the 2020 election. The convictions of hundreds of other January 6 rioters, as well as a key count in the case against Donald Trump in DC, are at stake. Trump judge Greg Katsas dissented, and the Supreme Court will hear the case this year.
- Biden judges Pan and Michelle Childs rejected a delay request and ordered a Trump attorney to produce immediately a number of documents sought by special counsel Jack Smith in his probe of Donald Trump.
- Biden judge Toby Heytens overturned a Trump district judge and ruled that citizens and states can seek to bar participants in a rebellion against the US, as on January 6, from running for office under the Fourteenth Amendment. The Colorado Supreme Court recently disqualified Trump from running for president in Colorado under this theory and the US Supreme Court agreed to review the case on an expedited basis, with oral arguments scheduled for February 8th.
- Biden judge Lydia Kay Griggsby issued a preliminary injunction against a Baltimore County redistricting plan that she found harmed Black voters in violation of Section 2 of the Voting Rights Act. She later approved a revised plan that remedied the problem.
The Supreme Court has and likely will play a crucial role in critical issues on voting rights and our democracy. As illustrated above, lower courts play an important role concerning these issues as well. Whether Donald Trump or Joe Biden nominate future justices and judges will be critical to whether federal courts undermine or protect our voting rights and democracy.