Trump’s Power Won’t Peak for Another 20 Years

By the early 2040s, Trump-appointed chief judges will simultaneously sit atop nearly every appeals court in the country.

An illustration of an ascending graph and columns.
ThePalmer / Getty / The Atlantic

About the author: Jacob Finkel was a Bradley Fellow at the Stanford Constitutional Law Center before serving as a law clerk on the U.S. Court of Appeals for the Third Circuit.

The Trump presidency may be over, but the Trump era has only just begun—at least when it comes to influence over the nation’s courts. Measured solely by the number of judges he appointed, Donald Trump’s impact is staggering: 234 judges, including 54 powerful appellate judges, almost one out of every three. By comparison, President Barack Obama appointed 172 judges (30 of them appellate) in his first term, while George W. Bush managed 204 (35 appellate). But Trump will have an even greater influence than this measurement suggests. That is because his judges won’t reach the apogee of their power until the early 2040s, when Trump-appointed chief judges are on track to simultaneously sit atop nearly every appeals court in the country.

This portends a potential disaster for progressive gains in many areas of law, including voting rights and health care. The limelight typically falls on the Supreme Court for these developments, but the lower courts are where much of the action happens. In its most recent term, which ended in July, the Supreme Court issued 63 signed opinions. The Circuit Courts of Appeals, by contrast, decided or issued orders on 48,300 cases in 2020. Although the Supreme Court has the final say, and Trump’s three new justices will shape the law for decades, the large majority of appeals—more than 97 percent—will be decided by the 12 geographic circuit courts, and the 167 appellate judges who sit on them. And the individuals who wield the most influence in shaping those outcomes are the chief judges of each circuit.

Officially, each chief judge has two roles: handling administrative matters and presiding over en banc (“full court”) hearings. Those are important, but they pale in comparison with the remarkable power the chief has behind the scenes—influencing which judges are assigned to which panels. A panel of three judges decides every appellate case, and the composition of those panels can be the whole ball game.

Imagine a nine-judge circuit court with a 5–4 liberal majority. A conservative chief could congregate three liberals in one panel and then erect two panels with a 2–1 conservative edge, swinging the effective conservative weight on that court from a 44 percent minority to a 67 percent advantage. I call this “judicial gerrymandering.”

The techniques that make this possible are already in use. Marin Levy and Adam Chilton, law professors at Duke University and the University of Chicago, respectively, have studied the partisan composition of panel assignments. Their findings “produce strong evidence that strictly random processes are not always used,” thus skewing “the ideological balance of panels.” In plain terms, this means that chief judges are permitted to quietly control which judges sit together, a power that could affect the rights of millions.

How this plays out today is generally pretty benign. On nearly every circuit, the assignment process begins with an automated system that randomly assigns judges to panels before allowing the chief to fiddle with those results. For now, chiefs generally take a minimalist approach to interventions: solving a scheduling conflict or separating panel members who loathe one another. Today’s chief judges would hesitate before aggressively stacking their courts with unequal panel assignments.

But much of what we know about the Trump nominees so far suggests that some may be willing to flout norms to achieve their ends. Many of Trump’s picks have “open experience in ideological and political warfare,” according to a report by The New York Times. A forthcoming study indicates that after 60 years of nonpartisan en banc decisions, the arrival of the Trump judges has fueled “a dramatic and strongly statistically significant” change in the en banc voting process, potentially turning it into “a weapon to advance majority party preferences.” Altering judicial assignments to attain certain results might not be beyond them.

This would be worrisome even if it were to affect only a handful of courts over time, but the reality is much more distressing. Because of a quirk that Trump’s nominations team seized on, these judges will enjoy power for decades. When Congress introduced the chief-judge position in 1948, it created a seven-year post that would be filled by a circuit’s longest-serving judge under age 65. Trump’s team exploited that system in two steps. It began by picking nominees younger than Congress had ever imagined; this has been widely recognized, but did not itself maximize the number of future Trump chiefs. The crucial second step was nominating eligible judges in order of age.

Here’s how this is likely to shake out. Although Trump’s picks are unusually young, with an average age of 48, simply appointing three 48-year-olds to a single circuit would have done little good. In most circuits, that strategy would produce a single chief, during whose term the latter two would cross the age-eligibility line. In the optimal scenario, age is carefully aligned with seniority—start with a 48-year-old, followed by a 44-year-old, then a 38-year-old, which enables all three to serve as chief, producing an uninterrupted 20-year rule over their circuit.

This is the pattern we see in Trump’s appointments, with stark and sobering results. An analysis of all 574 circuit judges appointed since 1948 reveals his outsize impact. Cumulatively, Trump chiefs are slated to serve for more than 120 years, longer than the appointees of any president in the postwar period. For context, President Obama picked four chief-eligible judges in his first term, while President Bush picked eight. Trump did far better, fostering a coming wave of 18 chief judges over the next 30 years.

Take the Tenth Circuit; there, Trump picked only two judges, but they are teed up to serve in perfect succession. Both will turn 64 in the year they are on track to become chief. By contrast, none of President Obama’s five appointees to the Tenth Circuit will qualify to serve as chief, because all five will be too old when their time comes.

The apex of Trump’s strategy will arrive in the years 2040 and 2041, when his chief judges are set to control 11 of the 12 circuits. But Trump’s influence will increase much sooner (his first chief judge will take office in 2027), and may stretch even further into the future. The last Trump chief is expected to still be serving in 2049, barring unusual circumstances.

To catch up, the Biden administration needs to be intensely strategic as it fills more vacancies in the coming weeks and years. On most circuits, only young nominees such as Candace Jackson-Akiwumi, the 41-year-old whom Biden has tapped for the Seventh Circuit, will have a chance of one day serving as chief. But, as with Trump’s successful arrangements, youth is only the first step. Joe Biden must pick successively younger appointees over time to maximize his influence decades from now. This strategy will not only lock in a generation of progressive chief judges, but also provide a necessary deterrent. The threat of a coming progressive wave may be the only way to stop Trump chiefs from pursuing judicial gerrymandering.

By looking decades ahead, Republicans have secured unprecedented future influence over the courts. If Democrats fail to be similarly farsighted with their forthcoming nominees, the 2040s and beyond are destined to be the true Trump era.