Movement on Judges

Leah Litman

A National Law Journal article described how, in keeping with prior Democratic administrations, President Biden has relied less on clerkship experience—or at least a particular kind of clerkship experience—than prior Republican administrations. The article observed that while “the road to the bench for many Trump nominees ran through the chambers of a handful of particular judges and justices” (such as Justices Thomas and Scalia), “Biden has relied far less on feeder judges in his nominations.”

Why might that be? And is that a good or a bad thing? A recently published article by Brandon Hasbrouck offers one way of thinking through this. In Movement Judges, Hasbrouck writes movingly (no pun intended) about the importance of appointing jurists “who understand[] that our Constitution contains the democracy-affirming tools we need to dismantle systems of oppression”—judges who “consistently bear in mind the consequences cases have for individuals’ real lives beyond the courtroom.” (Full disclosure: I’m thanked in the article’s acknowledgments for comments on a draft.) Hasbrouck further describes a movement judge as a jurist who is “more committed to shifting fundamental understandings of how the law operates.” And he contrasts these judges and the strategies for appointing these judges with the kinds of judges and the kinds of strategies that Republican administrations have pursued; Hasbrouck describes the Republican strategy as a top-down, hierarchical approach to judicial selection that may have advanced the “conservative legal movement’s” goals, but does not offer the kind of sociological or democratic legitimacy that movement judging would.

Part of what makes Hasbrouck’s article so important is that it challenges some recent calls for progressives to turn to the Constitution outside the courts, or popular or legislative constitutionalism, in the current era of Republican-captured federal courts. While there are many powerful criticisms of judicial supremacy, I’ve sometimes wondered what such accounts have to say about cases where courts are simply asked to enforce existing laws or to interpret existing laws, yet refuse to do so. What would jurisdiction-stripping proposals do for those cases? What exactly is popular constitutionalism or legislative constitutionalism supposed to do in those circumstances? In Part II of Hasbrouck’s Movement Judges, Hasbrouck explores how even the most revolutionary liberationist movements depend on courts, which leads him to conclude that they demand movement judges too. It’s a timely rejoinder and complication to existing accounts calling for progressives to look beyond the courts.

What makes Hasbrouck’s case for movement judges even more powerful is the case studies he provides of movement judges. There’s Supreme Court Justice Sonia Sotomayor; Chief Judge of the Fourth Circuit Roger Gregory; Judge Carlton Reeves of the Southern District of Mississippi; and North Carolina Supreme Court Justice Anita Earls. If you haven’t heard the last name, you should: Justice Earls was one of the Justices in that court’s Harper v. Moore, which will be heard by the Supreme Court in December. She also authored the pathmarking recent opinion that addressed what to do about legislation and state constitutional amendments that were enacted or proposed because of the support of legislators elected from unconstitutionally racially gerrymandered districts, and was in the recent majority opinion requiring the state to provide a sound education for all North Carolina students. Hasbrouck more than makes the case for these movement judges without the benefit of the more recent opinions, but the judges’ recent opinions only underscore that Hasbrouck knew what he was doing, both when he identified some jurists as movement judges and when he wrote so powerfully about their importance.

Another case that’s pending at the Supreme Court underscores Hasbrouck’s emphasis on the importance of movement judges who will advance the law to serve movement aims. It also suggests that Republican administrations have, despite the top-down approach to judicial selection, done a good job of selecting judges who use their positions to move the law to further “movement” (broadly conceived) goals. The case (Jones v. Hendrix) is also about an issue that Hasbrouck wrote about just a few years ago in Saving Justice: whether people who were wrongly convicted or mistakenly sentenced in federal court because of an error of statutory interpretation can file a habeas petition challenging their conviction or sentence. A little more than a decade ago, the federal courts seemed to agree that the answer was yes. People who received more time in prison than the law allowed, or who were convicted of something that isn’t a crime, could indeed file a habeas petition.

But then a judge on the Tenth Circuit suggested that all of those federal courts were wrong and pioneered a different approach. That judge, of course, was Neil Gorsuch, who’s now on the Supreme Court that will ultimately decide the question. It’s yet another case study that underscores the importance of movement judges—at least in the sense of jurists who are focused on moving the law in particular directions. And if you have doubts about how the Court should resolve the case, Saving Justice should convince you. It also might convince you that a current or future administration should select Brandon Hasbrouck as a movement judge. (The opening of Movement Judges describes Hasbrouck’s interview with a judicial selection commission.)

Hasbrouck’s Movement Judges sounds a cautiously optimistic note about President Biden’s nominees; he says that the administration is “shooting in the right direction” even if the administration is not “aiming at the target.” What Hasbrouck hopes to see is a slate of judges open to the possibility of pursuing democratic movement goals in a movement-oriented way, rather than judges with a more establishment bent or outlook toward the world. That is, the administration might be looking just for nominees with certain credentials in a particular hierarchy. They might also be appointing judges who are actively looking to move the law to further movement goals, in the way that some recent Republican nominees have attempted to do so.

But maybe the fight isn’t just about what administrations should look for when they are selecting judges, but about what judges should do when they decide what kind of judge they want to become over the course of their career. Hasbrouck’s article might be directed not just to future Democratic administrations as they consider what kind of judges to appoint, but also to individual nominees who make it through the hurdle of the confirmation process. And maybe some of them will find reasons to be open to the (more democratic) movement demands that Hasbrouck encourages them to listen to.