This is Bloomberg Law with June Brussel from Bloomberg Radio. Chief Justice John Roberts has often talked about the independence of the judiciary and how partisanship has no place on the bench. The best way to do our job is to work together in a collegial way. No, I'm not talking about mere civility, although that helps. I am instead talking about a shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know at each step that we are
in this together. But a new study shows that federal Appeals Court judges may not feel like they're in it together when sitting on Bank. It shows a dramatic spike in both partisan splits and partisan reversals when all the judges on a circuit here a case together. The study by Neil Devons and Alison or Lawson, professors at William and Mary Law School, is called weaponizing, and Professor Devon's joins me, now you'll explain what a review on Bonk is.
So on bond is where all the judges who sit on a circuit of the Federal Court of Appeals here are case together, as opposed to what happens almost always, which are three judge panels, and on bond is used for two types of situations. One is where there's a conflict between panels, so you have two groups or three who have different views as to what the legal answer is, what right, what the right answers to the question, and so you have to resolve the conflict so that the
circuit has a law of the circuit. And then the second way that on bond is used is cases of imports, so the most important cases, the circuit gets the most consequential, the most controversial cases, and that's what the on bond process operates as. And it's also very different from other situations where you have a reviewing court being higher in the hierarchy of courts. So you have the district Court is reviewed by the Court of Appeals, is reviewed by
the U. S. Supreme Court. Each of the three courts is a distinctive court with different personnel. On bond is a situation where you have the judges who sit on the same court reviewing the work of a panel of judges from that court, and you actually nullify the panel of judges decision and it is thrown out. It's not in the federal report or anymore, and instead you get
a new decision from the on bond court. So it's the only instance where the review of a decision is done sort of horizontally by the same level of judges as opposed to vertically by a higher court. Is that sort of awkward to have them reversing what their fellow
judges have ruled. Yeah, it is very awkward, and that is part of the reason that typically Federal Court of Appeals judges do not like to hear cases on bonk because you were essentially saying to your colleagues, you know, the work you did was not satisfactory to all the judges who said on this circuit. So that type of
review has the risk of creating ill will. And so issues of collegiality are particularly relevant and on bond because it has a group of judges to emphacisely what you said, reviewing the handiwork, not of judges on a different court, but judges on their court. So why did you decide to do this study? Well, as is well known, over the past several decades, the parties have drifted further and
further part from each other. There's a shopper partisan divide between Republicans and Democrats now as compared to earlier times when Democrats included conservatives southern Democrats and Republicans included progressive
Northern Rockefeller Republicans. So now we live in the world where the party divide is also in ideological divide, and starting in particularly with Ronald Reagan, presidents of paid attention to ideology and appointing judges and needless to say, as we saw with Merrick Garland and the refusal to hold hearings from Eric Garland, the end of the silibuster or lower court judges when Obama was president and for Supreme Court justices when Trump was president. We've seen this intense
politicization of the appointment and confirmation process as well. So we live in a world today with as much more of a team mentality, you know, the Democratic team and the Republican team, and that there's loyalty to your team
you see down the world of politics. We see that in this personal lives and social media, and so Ali Larson, my co author, and I, so it would be useful to see whether that full of station has billed over to the federal courts of appeals so that the on bond process was one where there were increasing use of on Bank to have the majority political party on a
circuit overturned panel decisions from the minority political party. So it was on Bank becoming a partisan political weapon, just as partisanship has been growing throughout the nation in all sorts of ways. So has on Bank been captured this way?
Has it been transformed this way? So we just wanted to look at that, and it has obvious ramifications, did not just the decision making of the Federal Court of Appeals, but of sort of larger questions regarding the legiality, judicial independence, the commitments to the rule of law, the notion that judges are above politics. So for all those reasons, we thought it would be useful to take a look at how on Bank has changed over the years. So tell us at about the results of the study that you
did with Professor Allison Laarson. So what we found was reassuring and troubling at the same time. I'll start with the reassuring part of what we found and I'll shift to the troubling part if that's okay. So, notwithstanding the fact that partisanship and ideology start to play a more pronounced role. When Ronald Reagan was president, we didn't see that impact on bontasis you're making up until the Trump
era the last three years. So in other words, partisan splits, paris and reversals, the notion of a majority party of the circuit overturning the decisions of a minority party. We didn't see any impact with respect to the wise and
polonization and partisanship for Monald Reagan through Donald Trump. So it seems that values of collegiality, judicial independence, commitments to the rule of law, that these values were very strong long and even though the judges themselves were further apart ideologically the Democratic and Republican appointees, it wasn't filling over
to on bond up until two thousand eighteen, essentially. But during the Trump era, over the last three years two thousand and eighteen, two thousand nine, two thousand twenty, we saw a dramatic spike up on essentially doubling the number of partisans on bond decisions as compared to earlier eras, so statistically significant spike up and that obviously is troubling. And then the paper considers whether this is a short
term phenomenon associated with things specific to Donald Trump. There are certain cases, like the monuments clause cases, the immigration cases that were tied to things that were unique to Donald Trump. Or alternatively, whether this spiked up is just that the parts and ship is finding the tactic size and we now live in this new world of partisanship, and on Bond is reflective of that new world, and it just took a while to get there, and we don't know. We'll find out over the next few years
what happens. I want to break it down a little bit. First of all, how do you define a partisan split on an on bank panel? Is it all the Democratic appointed judges on one side and all the Republican appointed judges on the other? Essentially, yes, we allow for maybe one defector, but essentially you have a split where the Republicans are on one side, the Democrats are one side. Sometimes it's a perfect split, sometimes it's a near perfect split,
but it's essentially a Democrat Republican split. Both the Democratic appointed judges and the Republican judges engaged in this. Yeah, one of the things to study. Fine, and I wouldn't necessarily say this is heartening, but to say that it's not a question of only Republicans are doing this to democrats? Are only democrats are doing this two republicans. There are circuits where you have a majority democratic circuit that's policing Republican panels. So this occurred on the d C Circuit
in subpoena cases involving Don McGann and Michael Flynn. Occurred on the Fourth Circuits, another democratic majority circuit, in cases involving emolumous clause. So there are clear examples of democratic dominated circuits policing Republican panels. And then there are examples in the other direction of Republican dominated circuits apparently policing
democratic panels. So in the Sixth Circuits, which has a majority judges appointed by Republicans, a three judge panel held in the fourtune Amendment protected the fundamental rights of basic minimum education and that Detroit schools are violating that right. And that was a democratic panel. But the Sixth Circuit,
a Republican circuit, overturned that democratic panel. And then another ample was the Eleventh Circuit ruling on bond that this concerned fellows voting in Florida, concluding on bonds that fellas could not vote up voting in Florida one felons to vote, and that was done on bond by a Republican dominated circuits. How much of a difference is there in these partisan type rulings from before Trump. We studied over sixt eight
decade period. So we started by looking at on bond in the nineteen sixties and then we brought it all the way up through and I'll just give you the numbers leading up to Trump. So in the decades before Trump, it is twenty five percent in eighty six eight, eight ninety six to two thousand six two thousand, eight sixteen and a half percent two thousand sixteen two thousand seventeen. And then with Trump it's thirty five artists in reversal.
And that's where there's a majority of one party policing the panel, which is a majority of the other party, and twenty seven percent of the typus list who has divided almost perfectly along party lawrence. So it was going down until until Trump. Yes, it was going down until Trump. Not profoundly, you know, not necessarily statifically significantly down, but going down from Reagan until Trump and then doubling with Trump.
So is that statistically significant? Oh? Yeah, We we checked out the spike up and the spike after, and the Trump ever was statistically significant. Is this possibly then a blip on the screen, a moment in time. Yeah, So this is the question we were talking about just a second ago. Where some of these cases, like the subpoena cases involving Don Again and Michael Flynn, the emoluments claus in aegration, many of the on bond cases over the last three years involved, for lack of every way, putting
into Trump dockets. Okay, trump initiatives, either personal or policy initiatives, and those cases with a different president will also disappear. Whether there will be a Biden docket that will divide the courts on bond is yet to be seen. It may not happen, but this may be Trump only it maybe a blift. On the other hand, it may be
that the partisan divide has finally the past. The size and the judicial independence, collegiality norms that carried the day up until two thousand seventeen have now given way to these norms of party identity and charters and decision making.
And that's something that obviously we don't know for sure what's going to happen, and That's what we need to see over the next several years as to whether things stabilize and return to how they were, or whether essentially with Trump, were just in the new world and this is a time where the partisan divide is going to just still over to more and more things, including online decision making. Do you think that this shows that Justice Roberts was incorrect when he said there are no Obama judges,
no Bush judges, no Trump judges. Well, it's yes and no answer if whatef Justice Roberts is saying is that the judges are committed to the rule of law and not to a political party. That seems to have held true up until two thousand and eighteen. And then the question becomes whether two thousand eight into two thousand twenty is a total transformation where we now do have this paris and divide, or whether two thousand eighteen to two
twenty is just related to the Trump docket. So before two thousand eighteen, I think you can say that Chief Justice Roberts view that the judge is identified with the rule of law, norms of judicial independence and pleegiality. I think Chief Justice Roberts was right as to whether Chief Justice Roberts's right. Post two thousand eighteen, that's a little
up in the air. It may be that we do have Trump and Obama judges, but let's see what happens going forward and whether the partisan divide continues or whether there's a return to normalcy. So the jury is a little bit still out on that question as well, But I think he was generally correct up until two thousand eighteen at least. Do you think that the appointment of
more moderate judges by Biden might help deflect this? Well, I think what may matter the most is whether the judge is appointed by President Biden are committed to collegiality and judicial into peasant and whether they try to work as part of a circuit which is committed to not democratic goals, but committed instead of rule of law goals.
So a lot of this is depends on the outlook of the buyer, and the point sees is their outlooks that they're seeking the ideologically counterbalanced Trump appointees, in which Kate, you're going to have a partisan divide and this is likely to continue, or will they instead say partisanship is a problem, I'm committed to law values, I'm going to try to mitigate this turns to partisanship, so we need to see who president buyer the points and what their
orientation is. Thanks for being on the Bloomberg Law Show, Neil. That's Professor Neil Devans of William and Mary Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify and at w w W dot Bloomberg dot com,
slash podcast Slash Law. I'm June gross O. Thanks so much for listening, and please tune into The Bloomberg Law Show every week night at ten pm Eastern right here on Bloomberg Radio.