And the only way to break free of the gridlock is to expand the court. Will President Biden, who is filling court vacancies as fast as he can, add to the bench?
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There’s a lot of reasons for optimism when it comes to the Biden administration, but one of the greatest obstacles to achieving progress, not surprisingly, is conservative judges.
Judges like Reed O’Connor, a federal district court judge in Texas. You might remember Judge O’Connor from his 2018 stunt in which he ruled that the whole of Obamacare was unconstitutional. The ruling was an absolute boon for a coalition of conservative states that had spent the better part of a decade trying to undo Obama’s signature achievement
O’Connor was a well that Texas kept coming back to during the Obama administration. Texas notched several victories for conservative culture-war favorites such as blocking the Obama administration from giving same-sex couples family-leave benefits or letting transgender schoolchildren use the bathroom that corresponds with their gender identity. But the 2018 ruling throwing out all of Obamacare was the real dream victory.
Well, that is until the United States Supreme Court tossed the ruling in 2021, saying that Texas and the other states didn’t have standing to sue to overturn the law. “Standing” refers to the idea that a plaintiff can only bring a lawsuit if they allege that they have been harmed and that harm is “fairly traceable” to the defendant’s conduct. The Supreme Court noted that the conduct complained of in the lawsuit—that the government could impose a tax penalty on people who didn’t purchase health care—was not really traceable to the government because the government had no mechanism to enforce that penalty. Basically, if the government isn’t going to enforce a law against you, it’s tough to say they’re causing you harm with that law.
However, that is not a lesson that Judge O’Connor seems to have taken away from the Obamacare case. Instead, he’s doubled down on engaging in the weird fiction that conservatives are harmed by the mere existence of liberal ideas, even if they don’t apply to them.
Earlier this month, O’Connor ruled in favor of two religious health-care-provider groups, hindering the Department of Health and Human Services (HHS) from enforcing a requirement that health-care entities provide certain reproductive or trans health services. O’Connor’s ruling was really not a big surprise, as he’s been ruling against HHS in various procedural ways on this since 2016.
Here’s what O’Connor, and conservative religious groups who run hospitals and health-care systems, are mad about: Back in 2016, the Obama administration issued a rule requiring health-care providers who receive federal funds to treat patients no matter their sex or gender identity and barred any discrimination on the basis of termination of pregnancy. Put another way, the Obama administration wanted to maximize the availability of health care, particularly for marginalized people. Of course, under Trump, that regulation was defeated, but with the shift back to a Democratic president, conservative religious medical providers are worried they might have to provide comprehensive health care to people they don’t like.
However—and this is a big “however”—those religious health-care providers were never going to have to provide that kind of care. HHS has made clear since the rule was issued in 2016 that it had no intention of enforcing the requirement against religious health-care systems or providers.
In that way, it’s quite similar to the Obamacare ruling from O’Connor three years ago: a sop to conservative concerns and a culture-war victory, but one based on assertions of government wrongs that simply do not exist. Or, as Omar Gonzalez-Pagan, an attorney at Lambda Legal explained to the Associated Press, “the court and the plaintiffs were fabricating a controversy” where there was “no threat of enforcement against the plaintiffs.”
The effect of this ruling seems minimized when you read reports that it only applies to the two plaintiffs who brought the lawsuit, the Franciscan Alliance and the Christian Medical and Dental Association. However, those two conservative religious groups have 19,000 members. That’s an awful lot of institutions that can deny basic health care to people, particularly transgender individuals who are seeking care.
What the Obama administration aspired to, and what conservative religious hospitals and medical providers are now free to disregard, was that transgender individuals be provided the same health care as cisgender individuals. An example HHS used at the time it passed the rule was that if a hospital performed hysterectomies, it would have to provide them to both cisgender women and transgender men. This isn’t requiring religious hospitals to provide hormone replacement therapy or gender-affirming surgery. It’s simply saying that the same surgeries you would perform on a cis person should be performed on a trans person.
The 2016 rule still left an out, though, saying that any protections for religious freedom that already existed would supersede any relevant portions of the rule. But even that out wasn’t enough, apparently. Conservative health-care providers basically need an entire legal and administrative edifice to ensure they never have to acknowledge trans people exist.
O’Connor’s opinion is also full of bog-standard religious conservative dog whistles. There’s the praising of religious conservatives for standing up to “government orthodoxy,” complete with a weirdly unnecessary quote from Brave New World. There’s the accusation that the government attorneys were operating from “religious animus.” Finally, there’s O’Connor’s habit of referring to the two organizations that brought the suit as the “Christian Plaintiffs,” suggesting a monolithic Christian view of the appropriateness of providing reproductive health care and trans health care, rather than that these organizations represent evangelical and Catholic providers.
Though the problem of conservative judges seems as pernicious as it is depressing, there is a fix, and it’s the obvious one: Pack the court(s). The only way to pack the Supreme Court is to literally expand it, ideally from nine justices to thirteen. That would give President Biden the opportunity to nominate four additional justices, which would help undo Trump’s three terrible appointments. An additional way the composition of the federal courts can be changed for the long haul, though, comes about by having older Clinton or Obama appointees retire, making way for younger Biden appointees who can serve longer.
Some judges did this right away, with one, Judge Victoria Roberts, advising Biden of her plan to resign only 90 minutes after he took office. There are currently 32 vacancies created either by judges who have resigned or who have taken senior status. Judges who take senior status leave the full-time bench and essentially only provide volunteer service to the court, and doing so opens a vacancy for a new judge.
Biden has been moving pretty quickly on vacancies. There are over 100 openings on the federal courts, as not all openings have resulted from retirement or senior status. Eight Biden nominees have been confirmed, and over 30 other nominees are pending.
He’ll need to move fast, though. The GOP has rammed through over two dozen voting restrictions, and it might be hard to hold on to the House, the Senate, and even the presidency in the 2022 and 2024 elections, so getting as many judges in before that happens is critical. Without that, so much of the progress we’ve made could be lost.