In summary
President “Trump had a particularly significant impact on the 9th Circuit” in his first term, moving the reliably liberal appeals court to the right. That could influence abortion policy in the West.
For decades the 9th Circuit Court of Appeals has been a reliable stronghold for liberal ideals, but that changed during President Donald Trump’s first term thanks to the 10 appointments he made.
The court’s balance sits at 16-13 as he returns to office, and the margin between judges appointed by Democrats and Republicans hasn’t been this narrow for nearly three decades.
Democrats can breathe a small sigh of relief, however, with that margin unlikely to change over the next four years — it would take a liberal judge dying or voluntarily retiring, the latter of which has slim chances, to further shift the court.
Still, Trump’s remake of the West Coast’s federal judiciary has already made a mark, including when it comes to abortion and reproductive health.
For instance, in 2020, the 9th Circuit upheld a Trump administration rule barring some federally funded clinics from speaking about abortion even if patients ask about it. The panel had a 7-4 majority of conservative-appointed judges, including two named to the bench by Trump. Eventually, the Biden Administration dismantled the rules, rendering the case moot, but the decision set plenty of reproductive rights advocates on edge.
California’s Democratic lawmakers set about strengthening abortion access within the state after the U.S. Supreme Court eliminated federal abortion protections with its 2022 Dobbs decision. State voters even passed a constitutional amendment guaranteeing the right to abortion.
But the 9th Circuit covers more states than any other federal appeals court, and some of them favor very different policies than California. Idaho, with a near total abortion ban, has become a hotspot of litigation, and rulings by the 9th Circuit could impact all of the nine states it oversees.
It’s never a foregone conclusion how judges will rule, but the balance on the 9th Circuit is particularly important as states file lawsuits to block policies signed by Trump on the first day of his second term.
“There’s a much greater chance, or much greater risk, depending on which side you are, that you might get a majority of conservative judges reviewing those panel decisions and setting law for the entire circuit,” said John P. Collins, an associate professor at George Washington University Law School.
How Trump changed the court
Trump appointed 226 federal judges during his first term and flipped the ideological balance of three appeals courts from majority Democratic-appointees to majority Republican-appointees. He was able to make so many appointments in part because Congressional Republicans froze confirmation hearings at the end of President Barack Obama’s second term, leaving dozens of vacancies.
Former President Joe Biden appointed eight judges to the 9th Circuit, but none of them replaced conservative judges. Trump’s 10 appointments flipped four seats in the appellate court.
“Trump had a particularly significant impact on the 9th Circuit,” Collins said. “He was able to really narrow the partisan gap on the court.”
Split decisions and decisions swatting down liberal appeals have become more common for the appellate court, including those related to the death penalty, gun control, homelessness and religious exemptions to nondiscrimination rules. The odds of a case landing before a conservative majority of judges are much higher than in decades prior.
When it comes to abortion, that matters, experts say, because the Dobbs decision muddied the legal waters, overturning the 1973 Supreme Court ruling that established the right to an abortion, Roe v. Wade.
“Before Dobbs…even in more conservative appellate courts, you’d have conservative judges say, ‘I may want to rule a certain way, but I’m still constrained to Supreme Court precedent,’” said Zachary Baron, director of the Center for Health Policy and Law at the O’Neill Institute at Georgetown Law.
Now, without clear precedent and a less reliably liberal appellate court, the 9th Circuit could issue new rulings that upend reproductive health care and access in the western U.S.
“We’re dealing with a legal landscape that’s changing and that probably means that judges are more likely to vote in accordance with their predilections,” said Arthur Hellman, professor emeritus of the University of Pittsburgh School of Law. “You expect a conservative judge will decide a case one way, and a liberal judge will decide it the other way.”
Hellman, a 9th Circuit scholar, examined in a study nearly 30 years of decisions from the 9th Circuit and found that there was a strong correlation between the party of a judge’s appointing president and their ideology.
A host of reproductive health cases are wending their way through the lower courts or awaiting a final decision from the appellate court. Just last week, a health system in Idaho sued to prevent the state from enforcing its abortion ban where it conflicts with a federal law requiring federally funded hospitals to provide emergency stabilizing care. That law is known as the Emergency Medical Treatment and Labor Act, or EMTALA.
There are multiple pregnancy-related emergencies that may require a doctor to terminate a pregnancy in order to save the mother’s life or prevent her from suffering serious bodily harm, such as loss of fertility or organ damage. Idaho law only allows an abortion in instances where the mother will die.
The lawsuit to preempt that law, now in a lower district court, is similar to a case brought by the U.S. Department of Justice two years ago which sought to stop Idaho from enforcing its ban. The 9th Circuit heard oral arguments in December with a 6-5 conservative majority on its panel, with four of Trump’s first-term appointees on the panel.
It has not yet issued a decision.
Liberals move cases to state courts
While Democratic appointees still have a majority, Trump’s appointees will leave an extensive legacy. They are some of the youngest judges in modern history and won’t be eligible to retire for several decades.
People who aim to ban abortion nationwide are playing a long game with the judiciary, Collins with George Washington University Law said. Trump appointed judges who are more likely to support the 150-year-old Comstock Act as a way to prohibit mailing abortion pills or agree with arguments that unborn fetuses have the same legal rights and status as people, he said.
“They’re going to start out as these fringe ideas, but when the same people are banging that drum for 20, 30, 40 years, all of a sudden it starts to become a little bit more normal, and before you know it, cases that were on the books for 50 years are suddenly overturned,” Collins said
Others say cases seeking to protect reproductive rights have already moved from federal courts into state courts where they have a better chance at success.
In the wake of Dobbs, states are becoming more creative in interpreting how their own constitutional provisions about “life and liberty and equal protection” may protect reproductive autonomy, said Diana Kasdan, Legal and Policy Director for the UCLA Center on Reproductive Health, Law, and Policy.
“Over time even federal courts can be influenced by a really persuasive and well-reasoned state court decision of a constitutional provision if there is no Supreme Court precedent,” Kasdan said.
Still, Collins said the 9th Circuit will continue to be an important venue for any challenges that crop up to Trump’s second-term policies.
“The 9th Circuit maintains its label as the most liberal circuit, until proven otherwise by some other circuit sort of stepping into the fray.”
Supported by the California Health Care Foundation (CHCF), which works to ensure that people have access to the care they need, when they need it, at a price they can afford. Visit www.chcf.org to learn more.