By Sarah Wetter and Lawrence O. Gostin
In the Federalist No. 78, Alexander Hamilton called judicial independence “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” Judicial independence is also critical for public health. Over the last century, courts have affirmed broad public health powers and established modern health-related rights. Yet in a significant departure from history, today’s federal courts have been far from impartial, issuing ideology-driven decisions that will resound for decades to come, with harmful public health consequences.
Since Amy Coney Barrett replaced Ruth Bader Ginsburg in 2020, the Supreme Court has had a highly conservative supermajority — the largest partisan shift in a century. That conservative shift has weakened public health powers to address major threats like COVID-19 and climate change, often relying on rarely used premises, including the “major questions” doctrine. The Court has overturned or ignored precedent to invalidate the right to abortion, and expanded the scope of the Second Amendment. The justices have especially placed a premium on religious freedom to outweigh public health powers to curb the spread of COVID-19 or to prohibit LGBTQ+ discrimination. This term, the Court will rule on issues at the heart of health equity, and the outcomes are sadly predictable. Likely emboldened by the Supreme Court, lower federal courts are also issuing more ideology-driven decisions, with litigants “forum shopping” to get their case in front of a district judge likely to rule in their favor.
We cannot expect a diversion from these judicial patterns that harm public health without meaningful measures to make our federal courts less partisan and more balanced; reforms that require significant political will. Court packing, or increasing the number of judges, would be extreme and could further undermine judicial independence. We favor more democratic reforms that support judicial independence and balance. And the reforms we propose are quite standard in other advanced democracies.
Limiting the use of nationwide injunctions.
In April 2022, a single federal judge in Florida, who was appointed by President Trump and rated “unqualified” by the American Bar Association, issued a nationwide injunction to block the CDC’s transit mask mandate. This case exemplifies a problematic trend: single federal judges, typically aligned with the opposing party, issuing nationwide injunctions to thwart key initiatives of the president and executive agencies. This trend has been prominent on both ends of the political spectrum, as partisan groups seek out, or forum shop for, a federal judge likely to be sympathetic to their cause. It is too easy for one federal judge to issue a partisan ruling that could adversely impact national health and safety, and could take several months or longer to appeal.
Congress, which has the power to alter the rules of the federal judiciary, could set limits on district court-issued injunctions to make them enforceable only within the district, especially when a narrow injunction would provide relief to the plaintiffs at hand. Congress could also limit the duration that nationwide injunctions issued by district courts remain enforceable, requiring an appellate review within a limited time period to either overturn or renew the injunction in short order.
Restricting the shadow docket.
Looking to the Supreme Court, another area for reform is the “shadow docket,” which includes thousands of unsigned and unexplained decisions each year. The Court’s “merits docket” typically contains the Court’s most consequential cases that go through rounds of briefings and arguments before detailed decisions are issued. Conversely, the shadow docket is reserved for routine measures like denying certiorari, issuing summary judgements, or ruling on emergency matters to prevent imminent harm, such as in death penalty appeals. However, in recent years, the Court has been ruling on highly controversial matters with huge ramifications through the shadow docket, meaning the decisions are issued without detailed explanation and without the parties having an opportunity to present their evidence and arguments. For example, the Court used the shadow docket to uphold a Texas law that prohibited abortion after 6 weeks’ gestation, (a clear constitutional violation at the time); to block New York’s restrictions on religious gatherings during the COVID-19 pandemic; and to block the Occupational Safety and Health Administration’s vaccine-or-test rules for large employers.
Congress should not allow the shadow docket to be a loophole for justices to issue ideology-driven decisions without providing legal justification, and without accountability. Further, shadow docket opinions are binding on lower courts, which have to apply the decisions without fully knowing the Supreme Court’s reasoning. At minimum, Congress should act to restrict the Supreme Court from using the shadow docket for cases with high public consequences, to ensure that such decisions are signed and explained.
Judicial appointments and term limits.
In the United States, all federal judges (Supreme Court justices, court of appeals judges, and district court judges), are nominated by the president and confirmed by the U.S. Senate with a simple majority. Federal judges have no fixed term; they serve for life, until retirement, or until conviction by the senate. Through this process, former president Trump appointed one third of the Supreme Court and 30% of federal appellate judges — largely young and highly conservative appointments that will have an enduring legacy.
The U.S. has much to learn from peer countries that impose more rigorous processes to ensure judges are well-qualified, less partisan, and more representative of the national populace. Several countries require nominations to be approved by two thirds of the Senate; judges must appeal to lawmakers across the political spectrum to be confirmed. Many countries also set fixed term limits for judges and justices, such as 12 or 15 years. Term limits would reduce the impact that a single president could have on the trajectory of the federal court system, make judicial turnover more predictable, and lead to judges and justices that are more in tune with modern issues in everyday life, including public health problems and LGTBQ+ rights.
While Congress might be hesitant to significantly reform the federal judiciary, it is undeniable that the federal court system has strayed far from the “steady, upright, and impartial” role that it was designed to serve. As we have witnessed recently, judicial partisanship is a major threat to public health, health equity, and human rights. To address this problem at its roots, Congress should implement the reforms discussed here, paving the way for a less partisan, and more accountable, federal court system.
Sarah Wetter is an Associate at the O’Neill Institute for National and Global Health Law at Georgetown University.
Lawrence O. Gostin is Founding O’Neill Professor of Global Health Law and Faculty Director of the O’Neill Institute at Georgetown University. He directs the World Health Organization Collaborating Center on National and Global Health Law and sits on the WHO Review Committee to Revise the International Health Regulations in light of the COVID-19 pandemic.
