A portfolio of Southern cases, genteel courtroom traditions and years of forceful conservative rulings shape the enduring image of the federal appeals court in Richmond.
But the bench has shed its conservative label, undergoing a sea change in the past decade, and is poised to have an immediate impact on the fledgling Trump administration.
Starting next month, the full court will take up the president’s entry ban for immigrants from some countries, followed by the case of a transgender teen whose battle to use a boy’s bathroom challenges the president’s new policy.
Since taking office, President Trump has harshly criticized federal judges, specifically deriding the San Francisco-based appeals court — which put the first version of his travel ban on hold — as in “chaos” and “turmoil.”
The U.S. Court of Appeals for the 4th Circuit, a Richmond-based venue the administration might once have found reliably hospitable, now has a higher proportion of judges tapped by Democrats than most of the nation’s 13 circuit courts. That includes the pan-Western 9th Circuit with its long-standing reputation among conservatives as the “nutty 9th.”
A test of how far the 4th Circuit bench has tilted left will come May 8. The court announced this week that it would bypass the traditional three-judge panel and gather that day as a full complement to review Trump’s entry ban.
Within the past year, judges at the historic Italianate courthouse, who descend from the bench to shake hands with the attorneys who have argued before them, have issued major opinions that would have been unimaginable two decades ago.
The court said Republican lawmakers in North Carolina deliberately undercut the political power of African American voters through targeted voting restrictions. Judges sided with the Virginia transgender teen in the first round of his fight. And in a gun decision that went further than other appeals courts, the Richmond-based circuit ruled that the Second Amendment does not protect what it called “weapons of war” in a case trying to undo a Maryland ban on semiautomatic, military-style firearms.
“There’s a persistent impression that’s long been out of date that this is a very conservative court,” said Steven Goldblatt, who directs the appellate litigation program at Georgetown University’s law school and regularly appears before the court. “It’s a different court, with many new judges who cannot be measured by decisions reached many years ago.”
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The court’s caseload consists of appeals from Maryland, Virginia, West Virginia and the Carolinas.
After federal judges in Maryland and Hawaii blocked critical sections of the president’s revised travel order in March, the Justice Department appealed. The administration also asked the 4th Circuit to put the Maryland judge’s opinion on hold and allow the ban to take effect immediately ahead of oral arguments next month.
The Maryland case applies only to the provision of Trump’s order that would have stopped new visas for travelers from six Muslim-majority countries: Iran, Libya, Sudan, Somalia, Syria and Yemen.
The court also has been asked to rule again in the case of Gavin Grimm, the transgender teen challenging his school’s requirement that students use a bathroom that corresponds to their “biological sex.”
The case returned to Richmond after the Supreme Court decided in March to put off a ruling on transgender rights and referred it back to the 4th Circuit to possibly look at broader constitutional questions.
When it ruled in Grimm’s favor initially, the 4th Circuit cited the Obama administration’s position on transgender student rights. The Trump administration since has revoked federal guidelines that directed schools to allow transgender students to use a bathroom consistent with their gender identity.
Last week, Senior Judge Andre M. Davis and Judge Henry F. Floyd — both nominated by President Barack Obama — took the unusual step of issuing a passionate statement placing Grimm among the pantheon of human rights leaders who confronted inequities through the courts. Grimm’s case will likely be heard in September.
[Supreme Court sends transgender case back to lower court]
For years, attorneys pursuing liberal-leaning policies viewed the 4th Circuit as hostile territory for civil rights and for criminal defendants, and as a reliable backstop on national security policies.
But that is changing.
Several national legal organizations that have the flexibility to choose where to wage their legal battles are deliberately turning to the 4th Circuit.
The national groups that filed the most recent challenge to Trump’s entry ban in Maryland — the National Immigration Law Center and the American Civil Liberties Union — could have gone to other venues.
“The court has become a much friendlier forum in civil rights cases, and it appears that criminal defendants have found a more open ear,” said Charlotte attorney Jake Sussman, who has defended inmates on death row and successfully challenged North Carolina’s ban on same-sex marriage.
The 15-judge court looks very different today than it did two decades ago.
In 1993, the bench had only one woman and no minorities. Three-quarters of the judges were nominated by Republican presidents, including leading conservative voices J. Michael Luttig and J. Harvie Wilkinson III, who in later years were on George W. Bush’s shortlist for the Supreme Court.
In the late 1990s, the court issued opinions upholding restrictions on abortions and striking down a law allowing rape victims to sue their attackers in federal court. The court in 1999 overturned the requirement that police read suspects their rights, known as Miranda rights, before interrogating them. The Supreme Court later reaffirmed Miranda rights.
On national security matters, the court often upheld the post-9/11 policies of the Bush administration, supporting the detention of enemy combatants. In death penalty cases, the Supreme Court reversed a number of 4th Circuit rulings in the early 2000s, leading to a measure of relief for inmates on death row.
Conservatives were stunned in 2006 when Luttig announced his retirement to become general counsel for Boeing. At the time Obama took office, the split on the court still favored Republican nominees, 6 to 5. But with four vacancies, the administration saw an opportunity to remake the court — as it did on other circuit courts — and diversify the bench to better reflect the demographics of the country.
Rakesh Kilaru, who worked in the White House Counsel’s Office during Obama’s tenure, clerked for Wilkinson in 2010, the year that three new judges joined the court.
“The picture I have that is signed by all of the judges looks quite different than the picture you would have seen a few years before, and I think that’s something the president is quite proud of,” Kilaru said, referring to Obama.
Among the 15 active judges on the court, there are five women, of whom one is African American, one Latino judge and two African American men, including Roger Gregory, the chief judge. Gregory was initially appointed by President Bill Clinton during a congressional recess and later was nominated by Bush at the urging of Virginia’s two senators.
Judge Diana Gribbon Motz, a Clinton nominee, was for years on the losing side, particularly on national security cases. Motz wrote the recent opinion striking down North Carolina’s voting restrictions that she said “target African Americans with almost surgical precision.” The court now has a handful of Obama nominees on the bench to the left of her.
A total of 10 of the active judges were nominated by Democrats.
That leaves the 4th Circuit — along with three other circuits — with 67 percent of judges nominated by Democrats, ranking at the top, with the Boston-based 1st Circuit, the Atlanta-based 11th Circuit and the Federal Circuit in Washington, according to an analysis by Russell Wheeler, an expert on judicial nominations at the Brookings Institution.
Wheeler cautioned that there is a spectrum of views and approaches even among judges nominated by the same president, but that the party of the president who chose a judge is not a bad predictor of a judge’s perspective.
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The 4th Circuit judges and their stable of clerks assemble in Richmond about every six weeks for “court week” in the downtown courthouse that provided offices for Confederate President Jefferson Davis during the Civil War.
Cases are argued before randomly assigned panels, and it is still possible to draw a panel of three judges all nominated by Republican presidents. But the odds have shifted, and, when the court agrees to a redo and reviews a case en banc, the balance tips decidedly left.
In March, a full panel convened to revisit a 2-to-1 decision in favor of North Carolina county commissioners sued by the American Civil Liberties Union for opening their meetings with mostly Christian prayers.
The court did not explain its highly unusual decision this week to skip the three-judge panel in the challenge to Trump’s revised entry ban. But the move initiated by the court suggests the judges recognize the need to move quickly on a contentious issue with national significance that appears destined to end up at the Supreme Court.
Allison Orr Larsen, a William & Mary Law School professor who also clerked for Wilkinson, said the court may have lost its conservative label but not its sense of collegiality.
“Even for those difficult, politically charged cases, I’m sure they will be thoughtfully deliberated by everyone regardless of the political affiliation,” she said. The court, she added, “puts a premium on collaboration.”