Washington Monthly - Trump vs. Biden: Who Got More Done on the Courts?

Open Markets strategic counselor Caroline Fredrickson discusses the resilience of Biden and his administration in gaining achievements of positive reform in the Supreme Court, all with fewer advantages than Trump.

Donald Trump’s most consequential accomplishment as president, the transformation of the Supreme Court, was made possible by dumb luck and the work of others. Thanks to the machinations of Mitch McConnell, the retirement of Anthony Kennedy, and the death of Ruth Bader Ginsburg, the 45th president was handed the opportunity to appoint three Supreme Court justices and create a conservative supermajority that is changing the very basis of American law and government. 

Joe Biden, by contrast, has had the chance to appoint only a single member of the Court, replacing one liberal justice, Stephen Breyer, with another, Ketanji Brown Jackson. The first Black woman justice has proved to be an influential addition to the Court, with her expertise in criminal justice and her brilliance in deploying textualism to undercut the conservatives. But due to circumstances outside either president’s control, Trump has had far more influence on the high court.

Many people may not realize that the same pattern applies to lower federal courts, where a president’s appointments can be as, or even more, consequential in the long run. Trump was able to place a record-breaking number of district and appellate judges, mostly because Republicans under McConnell blocked so many of Barack Obama’s nominees. (And because Obama himself didn’t get around to nominating judges to many open seats.) Biden had fewer opportunities teed up for him, but has done more with what he was given, nearly matching Trump’s record.

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