By Elliot Mincberg
Introduction
As the right-wing Supreme Court majority’s latest rulings create severe harm and injustice on issues ranging from student loans to affirmative action to LGBTQ+ rights, is there any hope for justice in our federal court system? The answer, fortunately, is yes. Because the Supreme Court hears so few cases each year, and because the Court often relies on factual findings made by lower federal courts, those courts offer an important opportunity for justice. With more and more of President Biden’s federal judicial nominees joining the bench, that opportunity is becoming realized. That makes more such confirmations crucial.
Specifically, as of the July 4 recess, the total number of Biden nominees to our federal courts confirmed by the Democratic Senate was “more than the last three presidents had confirmed at this point in their presidencies.” That remains true as of July 21, with a total of 140 judges. In addition to Justice Ketanji Brown Jackson, this includes 103 district or trial court judges, and 36 on the crucial federal courts of appeals. Many have noted the huge gain to our courts and to all Americans from the tremendous increase in demographic and professional diversity that these judges have brought. In an increasing number of specific cases, moreover, the impact of these judges’ commitment to equal rights is being felt in significant ways.
In September 2022, People For the American Way issued an initial report on Biden judges, discussing 11 decisions where Biden appellate judges had helped issue important positive rulings. Now, despite efforts by some Republicans to block the confirmations of such judges, the number of judges and rulings has grown much higher. Discussed below are 30 appellate court rulings that have taken place since our first report. These rulings illustrate how Biden judges have made an important difference in such areas as workers’ rights, protection against abuse by police or other government officials, the environment, health and safety, and corporate justice. Since the Supreme Court decides fewer than 100 cases each year while federal appeals courts handle some 50,000, the federal appeals courts effectively are the court of last resort for most Americans.
Many more decisions come from federal district court judges. This report also offers a sampling of eight positive decisions by Biden district court judges that offer justice and hope in these areas.
In addition, as cases concerning affirmative action, efforts to increase diversity in the workplace and education, and gun safety work their way through the lower courts after damaging Supreme Court holdings, some of these lower court rulings offer cause for hope. Biden judges have shown themselves capable of finding facts and interpreting Supreme Court holdings to minimize the damage to our rights. In addition to such cases, we also discuss below several instances in which Biden lower court judges have issued or contributed to rulings that have helped bring accountability and justice with respect to the conduct of former President Trump and his allies.
Our research has thus uncovered a total of 38 cases since our September, 2022 report through July 21, 2023 where these new Biden lower court judges have made an important difference. These include cases where Biden judges cast the deciding vote, and in some cases wrote the opinion, in 2-1 appeals court decisions that provided significant protections to people’s rights and equality. Not surprisingly, the judges who dissented in these cases and tried to favor corporations or other vested interests were often nominated by then-President Trump, as were many of the district court judges whose rulings were reversed due to Biden appellate judges. In addition, they include cases where Biden judges wrote important unanimous rulings. For example:
- Biden D.C. Circuit judge Florence Pan reversed a Trump district judge and ruled that January 6 rioters can be prosecuted for “obstruction of official proceedings,” a theory that could also allow prosecution of Donald Trump, despite a Trump judge dissent;
- Biden Sixth Circuit judge Andre Mathis cast the deciding vote that reversed a Trump district court ruling that dismissed a gender discrimination and retaliation claim brought by a Vanderbilt University professor;
- Biden Second Circuit Judge Eunice Lee wrote a 2-1 decision that reversed a district court and allowed a lawsuit against police for fabricating evidence to proceed, despite a Trump judge dissent.
These cases underline the importance of prompt action to confirm additional Biden nominees to our federal courts. As of July 21, the Senate has yet to take a final vote on 25 such nominees, while 63 more vacancies await nominations. The continuing harm being done by Trump judges, including 53 on the courts of appeals, further necessitates the addition of more fair-minded new judges to the federal courts. As former Senator Russ Feingold has recently commented, President Biden is unfortunately now “on track to fall behind” Trump’s pace in judicial confirmations by the August recess and the end of the year. As they continue their work after the July 4 recess and into the fall, the administration and the Senate must act promptly for the sake of our rights and freedoms.
Described below are the important decisions since our last report in which Biden judges have made a key difference in protecting critical rights. They include cases concerning issues threatened by restrictive Supreme Court rulings and concerning accountability for Donald Trump and his allies, other rulings on workers’ rights and discrimination, environmental and corporate justice, and claims of mistreatment and abuse by police and by other government officials. Below is a one-paragraph description and a link to a more detailed discussion of each case.
Issues Threatened by Supreme Court
As the far right Supreme Court majority continues to promulgate rulings threatening our rights on gun safety, affirmative action and other areas, lower court judges have also issued rulings on these subjects. Such lower court holdings will be very important in determining the reach and effect of harmful Supreme Court decisions, and Biden lower court judges have already played an important role in five decisions that may help mitigate the impact of such High Court rulings.
Important Gun Safety Law Reinstated by Biden Judge
Judge Eunice Lee, nominated by President Biden to the Second Circuit, put back into place a New York gun safety law that was stopped by a highly criticized lower court temporary injunction. The law sets important limits on where and under what circumstances people can carry guns after the Supreme Court struck down an earlier state gun safety law. Although the ruling was temporary pending a decision by a three-judge panel, it drew praise from New York Attorney General Letitia James. The order means that the “common sense” law will “continue to protect communities” and the “safety of everyday New Yorkers” as “the appeals process moves forward.” The October 2022 ruling was in Antonyuk v Hochul.
Biden Judge Upholds Important Federal Gun Safety Law
Judge Regina Rodriguez, nominated by President Biden to the District of Colorado, upheld the federal law that prohibits those convicted of a felony from possessing firearms. Specifically, she rejected a motion to dismiss an indictment under the long-standing federal law by a defendant who claimed that recent pro-gun Supreme Court decisions have made the statute unconstitutional. The November, 2022 ruling was in US v Willis.
Judge Lindsay Jenkins, nominated by President Biden to the Northern District of Illinois, rejected a motion for a preliminary injunction against Illinois state and local gun safety laws that restrict possession and purchase of dangerous assault weapons and ammunition. She ruled that the laws are likely constitutional even under recent Supreme Court precedent in her April 2023 opinion in Herrera v Raoul.
Judge Toby Heytens, nominated by President Biden to the Fourth Circuit, cast the deciding vote in a 2-1 decision that upheld an admissions policy at a selective public high school that was designed to increase student body diversity in multiple ways. A Trump judge dissent argued that the district court was correct in ruling that the policy had the purpose and effect of discriminating against Asian American students. The May 2023 ruling in Coalition for TJ v Fairfax County School Board is particularly important in light of the Supreme Court’s recent decision on affirmative action.
Biden Judge Dismisses Challenge to Affirmative Action Program to Promote Job Diversity
Judge Jennifer Rochon, nominated by President Biden to the Southern District of New York, threw out a lawsuit brought by a right-wing organization that tried to invalidate a fellowship program by Pfizer that uses affirmative action to promote employment diversity. This and similar cases will be important to help determine the reach of the Supreme Court’s recent affirmative action decision. The December 2022 ruling was in Do No Harm v Pfizer Inc.
Accountability for Donald Trump and His Allies
Federal courts are increasingly hearing cases concerning accountability for former President Trump and his allies. Judges nominated by President Biden have played an important role in two cases so far concerning such misconduct.
Judge Florence Pan, nominated by President Biden to the US Court of Appeals for the DC Circuit, wrote a 2-1 opinion that reversed a Trump district judge and ruled that January 6 rioters can be prosecuted under a law banning obstruction of official proceedings. The April 2023 decision in United States v Fischer may also facilitate prosecution of former President Trump for election subversion.
Judges Michelle Childs and Florence Pan, nominated by President Biden to the US Court of Appeals for the DC Circuit, were the majority on a three-judge panel that ordered that a Trump lawyer immediately provide Special Counsel Jack Smith specific documents concerning Smith’s probe of Trump’s mishandling of classified records after he left office. The brief order was issued on March 22, 2023.
Worker's Rights and Discrimination
Lower federal courts play a vital role in helping protect the rights of workers and others from discrimination and other misconduct. In addition to those discussed above, nine decisions involving Biden-nominated appellate judges have been crucial in protecting these rights.
Biden Judge Decision Reverses Lower Court and Allows Race Discrimination Case to Go Forward
Judge Toby Heytens, nominated by President Biden to the Fourth Circuit, wrote a unanimous decision that reversed a district court’s dismissal of an indigent person’s race discrimination claim against a former employer. The February 2023 ruling was in Allen v Atlas Box & Crating Co.
Judge Andre Mathis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, cast the deciding vote to reverse the dismissal by a Trump district judge of a gender discrimination and retaliation case filed by a female professor at Vanderbilt University. The June 2023 decision was in Lee v. Vanderbilt University, 2023 U.S. App. Lexis 15820 (6th Cir. June 22, 2023).
Biden Judge Upholds Collective Lawsuit by Multiple Employees for Overtime Pay
Judge Dana Douglas, nominated by President Biden to the US Court of Appeals for the Fifth Circuit, wrote a unanimous opinion that rejected a corporation’s effort to overturn a district judge’s ruling that multiple employees could join in a collective lawsuit against the corporation for failing to provide proper overtime pay under the federal Fair Labor Standards Act (FLSA). The June 2023 decision was in Loy v Rehab Synergies LLC.
Judge Toby Heytens, nominated by President Biden to the US Court of Appeals for the Fourth Circuit, wrote a unanimous decision that reversed a Trump district court judge and ruled that a parent suing a school district for disability discrimination against their child need not first go through and exhaust possible state administrative remedies. The May 2023 decision was in Z.W. v Horry County School Dist.
Judge Ariana Freeman, nominated by President Biden to the US Court of Appeals for the Third Circuit, wrote a 2-1 decision reversing a lower court and allowing a Black woman to go forward with discovery on her claim that she was retaliated against for filing a state job discrimination complaint in violation of Title VII. Trump judge David Porter dissented from the April 2023 decision in Stovall v Grazioli.
Biden Judge Reverses Trump Lower Court Judge and Gives Employee a Chance to Prove Age Bias Case
Judge Veronica Rossman, nominated by President Biden to the US Court of Appeals for the Tenth Circuit, wrote a unanimous opinion that reversed a ruling by a Trump district judge and gave a senior employee the opportunity to prove his age discrimination claim against Frito-Lay. The April 2023 decision was in Waggoner v Frito-Lay Inc.
Biden Judge Orders Lower Court to Ensure that Workers Get Proper Overtime Pay
Judge Gustavo Gelpí, nominated by President Biden to the US Court of Appeals for the First Circuit, wrote a unanimous opinion that reversed a district court ruling in favor of a corporation and ordered it to use proper legal standards in determining the eligibility of an energy company’s employees for overtime pay. As Judge Gelpí wrote, compliance with the overtime pay requirements of the Fair Labor Standards Act (FLSA) is “critical to ensuing worker protections” across the country. The March 2023 decision was in Walsh v Unitil Service Corp.
Judge Candace Jackson-Akiwumi, nominated by President Biden for the Seventh Circuit Court of Appeals, cast the deciding vote that gave a University of Wisconsin employee the chance to prove that he was improperly fired in retaliation for raising complaints about employment discrimination. Officials fired him “just one day” after his “whistleblowing.” The March 2023 Seventh Circuit decision was in Xiong v Board of Regents.
Corporation’s Attempt to Cut Back Whistleblower Protections Blocked by Biden Judge
Judge Gabriel Sanchez, nominated by President Biden to the Ninth Circuit, reversed a lower court that had accepted a corporation’s arguments that would have significantly limited whistleblower protections for workers under California law. Aaron Killgore blew the whistle when he was directed by his employer to violate federal law in preparing an environmental assessment for a US Army Reserve Command project and was then fired. The lower court ruled for the corporation. Sanchez wrote a unanimous opinion that reversed the lower court and gave Killgore the opportunity to prove his case. Correcting the lower court’s errors was crucial, Sanchez went on, to help fulfill the law’s purpose to “encourage workplace whistleblowers to report unlawful acts without fear of retaliation.” The October 2022 decision was in Killgore v SpecPro Professional Services LLC.
Environment, Health and Safety
Biden appellate and district court judges have continued to play a key role in cases concerning health and the environment, most of which concern allegations of corporate misconduct. seeking justice for individuals and groups of consumers against corporations. These include several cases helping people and agencies stop pollution or other environmental or health harm by corporations.
Judge Michelle Childs, nominated by President Biden to the US Court of Appeals for the DC Circuit, wrote a unanimous decision that rejected a coal mining contractor’s effort to contest a decision by the Federal Mine Safety & Health Review Commission that agreed to penalties levied against the company for safety violations. A primary issue in the case, whether courts should defer to an agency ‘s interpretation of its regulations, will be considered by the Supreme Court in 2023-24. The July 2023 decision was in GMS Mine Repair v Federal Mine Safety & Health Review Comm.
Biden Judges Uphold FDA Rejection of Corporation’s Flavored E-Cigarettes
Judge Myrna Pérez, nominated by President Biden to the US Court of Appeals for the Second Circuit, wrote a unanimous opinion that was joined by Biden Judge Sarah Merriam rejecting a corporation’s effort to overturn an FDA decision to prevent marketing of flavored e-cigarettes because they would not help protect public health. In fact, the FDA found that marketing the products could endanger public health by encouraging youth smoking. The June 2023 decision was in Magellan Technology Inc. v US FDA.
Biden Judge Upholds EPA Anti-Pollution Rule Against Power Companies’ Challenge
Judge Michelle Childs, nominated by President Biden to the US Court of Appeals for the DC Circuit, wrote a unanimous decision that rejected a challenge by a group of power companies to EPA rules requiring power plants to cut pollution they create that blows across state lines and degrades air quality. The March 2023 decision was in Midwest Ozone Group v EPA.
Biden Judge Casts Deciding Vote to Uphold Black Lung Benefits for Widow of Deceased Coal Miner
Judge Stephanie Davis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, cast the deciding vote in a 2-1 ruling that upheld an award under the Black Lung Benefits Act that went to the widow of a deceased coal miner. The majority rejected the coal company’s claim that substantial evidence did not support the award. The February 2023 decision was in Little T Coal Co. v Director, Office of Workers’ Compensation Programs.
Biden Judge Green-Lights Citizens’ Lawsuit Concerning Harmful Mining
Judge Charlotte Sweeney, nominated by President Biden to the District of Colorado, ruled that a citizens’ group and a county can proceed with their claims that a federal agency has improperly delayed taking action against limestone mining that they claim is harming “health, safety,” and the environment. The November 2022 ruling was in Glenwood Springs Citizens’ Alliance v US DOI, 2022 U.S. Dist. LEXIS 203525 (D. Colo. Nov. 8, 2022).
Other Corporate Justice Issues
Biden district and appellate court judges have also continued to play an important role in other cases seeking accountability for corporate misconduct. These include lawsuits brought by homeowners, consumers, and other people across the country.
Judge Lucy Koh, nominated by President Biden to the US Court of Appeals for the Ninth Circuit, cast the deciding vote reversing a lower court and allowing a class action by homeowners against a company for marketing allegedly defective and harmful products to go forward. This was despite a dissent by Trump judge Eric Miller, who would have affirmed the lower court. The July 2023 decision was in Salhotra v Simpson Strong-Tie Company, Inc.
Biden Judge Upholds Consumers’ Rights to Sue Under Telephone Consumer Protection Act
Judge Stephanie Davis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, wrote a unanimous decision that reversed a lower court judge and ruled that a consumer injured by a company’s unwanted solicitation by voicemail can proceed with a lawsuit, and a possible class action, under the Telephone Consumer Protection Act (TCPA). The May 2023 decision was in Dickson v Direct Energy L.P.
Judge Veronica Rossman, nominated by President Biden to the US Court of Appeals for the Tenth Circuit, wrote a 2-1 opinion that reversed a district court ruling in favor of an insurance company and ruled that consumers could proceed with a nationwide class action against the company for investment fraud. The March 2023 decision was in Clinton v Security Benefit Life Ins. Co.
Biden Judge Upholds Homeowner’s Right to Sue Against Unfair Debt Collection Practices
District Judge Bridget Brennan, nominated by President Biden to the Northern District of Ohio, upheld the right of a homeowner to file suit under the Fair Debt Collection Practices Act (FDCPA) for misconduct in connection with the servicing of her mortgage and attempted foreclosure of her home. Specifically, Judge Brennan refused to dismiss a lawsuit against the defense law firm that allegedly engaged in misrepresentation and other misconduct. The October, 2022 decision was in Ruckman v PHH Mortgage Corp.
Biden Judge Upholds Consumer’s Right to Sue for Injuries Caused by Product Defects
Judge Sarah Geraghty, nominated by President Biden as a district judge in the Northern District of Georgia, rejected an effort by two corporations to throw out a consumer’s lawsuit contending he was seriously injured because of a vehicle’s defective brakes. The case can now go forward so the consumer can seek relief. The January 2023 decision was in Coates v Lyft, Inc.
Police and Law Enforcement Abuse and Misconduct
Federal appeals courts play an important role in vindicating people’s rights to seek accountability and remedies in cases of abuse and misconduct by police and law enforcement. Biden judges have played an important part in five cases in this area.
Judge Andre Mathis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, wrote a unanimous decision that reversed a district court and allowed the family of a woman who died suddenly while in pre-trial detention for alleged burglary to pursue a claim for deprivation of her constitutional rights by a jail official. The June 2023 decision was in Mercer v Athens County.
Judge Eunice Lee, nominated by President Biden to the US Court of Appeals for the Second Circuit, wrote a 2-1 decision reversing a lower court and allowing a lawsuit to go forward on the claim that police improperly fabricated evidence that Tommy Barnes sold drugs. Trump judge Richard Sullivan dissented. The May 2023 decision was in Barnes v New York.
Judge Toby Heytens, who was nominated by President Biden to the US Court of Appeals for the Fourth Circuit, wrote a unanimous opinion that reversed a lower court ruling and gave a passenger who was assaulted by a Transportation Security Administration (TSA) screener the opportunity to sue the government under the Federal Tort Claims Act (FTCA). The April 2023 decision was in Osmon v United States.
Judge Toby Heytens, nominated by President Biden to the Fourth Circuit, wrote a 2-1 decision upholding a district court decision that stopped enforcement of vague state laws in South Carolina that criminalized “disorderly” or “disturbing” conduct in schools. Police officers had used the laws to threaten or actually prosecute at-risk youth, with clearly disproportionate enforcement harming Black students. The February 2023 ruling was in Carolina Youth Action Project v Wilson.
Biden Judge Provides Black Man the Chance to Prove that Officials are Liable for Severe Medical Harm
Biden-nominated Judge Candace Jackson-Akiwumi of the Seventh Circuit wrote a 2-1 decision that reversed a lower court and gave Richard White, a Black man in Illinois’ Shawnee Prison, another chance to prove that officials were deliberately indifferent to an injury that caused him serious medical harm. White made repeated complaints of severe pain and swelling from a knee injury he suffered there. Yet officials failed for two years even to give him an MRI. An expert later testified that if not properly treated within a short period, as happened to White, his injury will likely cause “major problems,” He explained that White’s knee had been “irreversibly and permanently damaged” and would likely require knee replacement. Trump judge Amy St. Eve dissented and tried to uphold the lower court decision throwing White’s case out of court without a trial. The September 2022 Seventh Circuit decision was in White v Woods.
Other Government Misconduct and Mistreatment
Since our last report, Biden district and appellate judges have played an important part in vindicating individual rights in six other cases involving government official misconduct and mistreatment of individuals.
Judge Gabriel Sanchez, nominated by President Biden to the US Court of Appeals for the Ninth Circuit, cast the deciding vote to allow a lawsuit seeking damages from a government official due to anti-Semitic discrimination and other misconduct to go forward. Dissenting Trump judge Patrick Bumatay would have dismissed the case based on qualified immunity. The June 2023 decision was in Ohana Control Sys. Inc. v Honolulu.
Biden Judge Casts Deciding Vote to Reject Official’s Immunity Claim in Retaliation Suit
Judge Stephanie Davis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, cast the deciding vote to reject a county official’s claim that he was immune from lawsuit when he retaliated against a citizen, including pointedly displaying a high-powered rifle towards her, for expressing views against the Proud Boys that he disagreed with. The May 2023 decision was in MacIntosh v Clous.
Judge Roopali Desai, nominated by President Biden to the US Court of Appeals for the Ninth Circuit, cast the deciding vote in a 2-1 ruling that reversed a district court and allowed a mother to pursue claims that state agencies violated the Americans with Disabilities Act (ADA) and the Constitution when they deprived her of her parental rights over her young son. Trump judge Mark Bennett dissented in the April 2023 decision in Ploof v Arizona.
Judge Sarah Geraghty, nominated by President Biden to the Northern District of Georgia, rejected state officials’ attempts to dismiss a race discrimination claim brought by a Black former graduate student at the University of Georgia. Instead, Arebe Taylor will have the opportunity to prove that two university officials improperly dismissed him from a graduate program and committed other misconduct based on his race. The October 2022 decision was in Taylor v Board of Regents.
Biden Judge Stops Enforcement of Overbroad State Law Restricting Non-Partisan Election Activity
Judge Victoria Calvert, nominated by President Biden as a district judge in the Northern District of Georgia, issued a preliminary injunction to halt Georgia’s enforcement of a restrictive election law against non-partisan groups that do not have the major purpose of electing a candidate. The law requires disclosure of all contributors who give $100 or more, seriously harming First Amendment rights, with civil penalties for any violation. The December 2022 decision was in New Georgia Project, Inc. v Carr.
Decision by Biden Judge Limits Involuntary Confinement of Mentally Ill Despite Trump Judge Dissent
Judge Toby Heytens, nominated by President Biden to the Fourth Circuit, wrote an important 2-1 decision that limited the government’s ability to confine indefinitely a mentally ill person being released from prison. Trump judge Julius Richardson dissented in the November 2022 ruling in US v Williams.
Conclusion
In just over two years since President Biden started nominating federal judges and the Democratic Senate started confirming them, Biden judges have already made a tremendous difference. Each of the decisions above helped people protect their rights against big corporations and others. They set important precedents in their jurisdictions that will help other people in cases concerning workers’ rights, environmental and corporate justice, and other areas, and can help defend justice against the injustice that the right-wing Supreme Court majority continues to foster. With almost 90 key vacancies now on our federal appeals and district courts and more to come, it is crucial that the Senate and the Biden administration take prompt action to fill all vacancies on our federal courts. All of us must act now to encourage prompt additional confirmations of this new cadre of federal judges with sincere commitments to equal justice and civil rights.