Back when I was a reporter covering the Supreme Court in the early 2000s, journalists in the nation’s capital had begun routinely to identify judges by the presidents who appointed them. I argued vigorously against this approach. The practice was reductive and corrosive, I would say. It implied to readers that a given judge was doing politics rather than law, a serious accusation, and in most cases an unfair one. To the extent that journalism plays a role in civics education, as I believe it does, it seemed to me that portraying the legal system in such a misleading way amounted to journalistic malpractice.
Was I naïve back then? I don’t think so. The most liberal justice on the Supreme Court at that time was John Paul Stevens, appointed by a Republican president, Gerald Ford. The most prominent liberal justices of the previous half-century, from Earl Warren to Harry Blackmun to David Souter, had been Republican appointees, often to the dismay of the presidents who chose them. It was Justice Sandra Day O’Connor, named to the Supreme Court by President Ronald Reagan, who wrote in one of the early post-Sept. 11 decisions during the George W. Bush presidency that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” Beyond the Supreme Court, there were plenty of judges named by presidents of both parties whose rulings had no obvious political valence.
The debate remained unresolved by the time I left daily journalism. Watching from the outside, I saw that my former colleagues were reserving political identifications for instances where the nature and result of a case made the identification relevant. That was the right resolution, it seemed to me. Judges kept behaving in ways that transcended labels. To cite one example, Richard Posner, a libertarian Reagan appointee, led the Chicago-based appeals court on which he served to the forefront of judicial support for same-sex marriage and against the imposition of regulations on abortion providers that were not grounded in medical evidence.
Then something began to change: not the journalistic resolve but the reality in the country’s courts as the culture wars grew hotter and judges, by way of their opinions, began to sort themselves into ideological camps. This was apparent during the Covid-19 pandemic. Democratic-appointed judges tended to defer to government decisions about the kinds of restrictions to impose while Republican appointees were more likely to view restrictions as assaults on individual liberty.
This was especially true when it came to limits on gatherings for religious worship. In 2022, Zalman Rothschild, a scholar of the Constitution’s religion clauses who is now an assistant professor at the Cardozo School of Law in New York, published a study of more than 100 challenges by religious plaintiffs to such restrictions. Not a single Democratic-appointed judge voted in support of the religious plaintiffs, while two-thirds of Republican-appointed judges found the limits in violation of the First Amendment’s free exercise clause. Among judges appointed by President Donald Trump, the figure was 82 percent.
There is also a growing partisan divide among judges over the Second Amendment, as documented in an article published online in The Duke Law Journal this year. The three authors studied more than 3,000 decisions involving gun rights. By 2022 and 2023, Republican-appointed judges supported Second Amendment claims twice as often as Democratic appointees, in 36 percent of the cases compared with 17 percent.
Trump appointees are ruling for the gun-rights plaintiffs nearly half the time, perhaps not surprising given the priority President Trump attached to the Second Amendment in his search for judicial nominees during his first term.
Now it is Chief Justice John Roberts who in retrospect looks naïve in his response seven years ago to an attack by President Trump on an “Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said at the time.
That was then. Now, partisan identification of federal judges has become indisputably relevant. Something remarkable has happened in the face of the second Trump administration’s assault on civil liberties and the separation of powers. The judiciary’s response has transcended partisanship. Republican- and Democratic-appointed judges have reacted with shock at the breadth of the president’s claims that his actions cannot be reviewed by the courts and with horror at his personal attacks on judges and his call for impeaching those who dare to cross him.
Last month, the federal appeals court judge J. Harvie Wilkinson III gave voice to the judiciary’s concern about the Trump administration’s attacks on the courts in a decision rejecting its request to pause a court order to “facilitate” the return of a migrant wrongly deported to a notorious prison in El Salvador. Writing for a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit, in Virginia, Judge Wilkinson summoned history’s ultimate judgment on the escalating conflict.
“The executive may succeed for a time in weakening the courts,” he wrote, “but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.”
While Judge Wilkinson has long been one of the country’s most prominent jurists, few people who read or heard about his opinion would have recognized his name or known anything about his four decades on the bench. What they learned from the reporting on his opinion is that he is a conservative Reagan appointee.
I had never heard of Judge Fernando Rodriguez Jr. of the Federal District Court in Brownsville, Texas. Few people will actually read his recent 36-page opinion invalidating the Trump administration’s use of the Alien Enemies Act as the basis for deporting Venezuelans it had deemed criminals from the Southern District of Texas. What readers learned from news reports, as I did, even before reading his opinion, is that he was appointed by President Trump.
And then there is Judge Richard E. Myers II of the U.S. District Court for the Eastern District of North Carolina. Last Monday, Judge Myers, who was appointed by Mr. Trump in his first term, rejected efforts by a Republican candidate to contest his loss in a close State Supreme Court race. He ordered that the results be certified in a favor of the Democratic incumbent. “You establish the rules before the game. You don’t change them after the game is done,” the judge wrote, turning down the Republican challenger’s arguments to have thousands of votes thrown out.
The identification of these judges by party label or the president who appointed them is not merely journalistically acceptable. At this time when only the federal courts stand between democracy and autocracy, it provides essential reassurance that the rule of law is not a partisan project.
Ultimately, of course, that reassurance is going to have to come not just from the lower federal courts but from the Supreme Court itself. It did not escape public notice that the decision last July granting the then-former president broad immunity from criminal prosecution found all six Republican-appointed justices on one side and the three Democratic appointees on the other.
Since then, the court’s rebuffs to the administration’s efforts to enlist its aid have been comforting. In March, by a vote of 5 to 4, the court refused the administration’s request to block a Federal District Court order requiring disbursement of some $2 billion in foreign aid money that Congress had appropriated. Chief Justice Roberts and Justice Amy Coney Barrett joined the court’s three liberal justices in making up the majority. Last month, the court ordered the administration to take steps to enable the return of the migrant from El Salvador who was mistakenly deported to a prison there. Then the court temporarily blocked the administration from deporting a group of Venezuelan migrants but without offering a reason.
These were temporary emergency rulings that have allowed the justices to postpone the hard and necessary work of addressing the statutory and constitutional merits of the president’s actions. Given that, the real confrontation between the justices and the president cannot be far off, with the rule of law in the balance. And no one will need to be reminded who appointed each one.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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