Since 2006, trust in the federal courts has declined from 60% to 35%. While confidence in the U.S. judiciary is at its record low, it is still higher than what Gallup has previously measured in places such as Venezuela in 2016 (16%), the Democratic Republic of Congo in 2013 (22%), or Syria in 2013 (25%). Decline in Americans’ confidence in their courts ranks among the 10 largest worldwide over a four-year period since 2006.
The United States has a problem: politics has increasingly contaminated institutions once expected to stand apart from partisan struggle—including the judiciary. Judges now face intense pressure, real or perceived, to align with the political beliefs of the presidents and parties that elevated them. When courts appear to curry favor with political power, they lose their ability to serve as impartial arbiters of disputes. When that happens, the nation loses one of its most important mechanisms for resolving serious policy conflicts peacefully and credibly.
This concern is no longer speculative. A growing body of empirical research shows that judicial outcomes often correlate with the political affiliation of the appointing president.
During the Obama administration, hundreds of environmental and social justice lawsuits were filed in carefully selected federal courts where sympathetic judges were likely to preside. These judges overwhelmingly ruled in favor of the plaintiffs. In some cases, disputes were resolved through so-called “sue-and-settle” arrangements, in which the federal government agreed to policy changes favorable to the plaintiffs—sometimes without meaningful participation by other affected parties. The practical effect was to make new policy through litigation rather than legislation.
The Trump administration adopted its own variation on this strategy. Rather than “sue and settle,” it pursues aggressive executive action aimed at accumulating maximum power in the executive. The strategy expects to lose in lower courts and, rather than taking the regular appeals process, seeks emergency relief from appellate courts and the Supreme Court—forums increasingly populated by judges appointed by the president himself.
These tactics have become common tools for advancing policies Congress is unwilling or unable to enact. For years, Congress’s failure to exercise its constitutional responsibility to legislate has invited executive overreach through such behavior.
By declining to act, Congress allows presidential power to accumulate from one administration to the next. Each president inherits expanded authority and adds to it. In doing so, Congress becomes an accomplice in weakening the constitutional structure by diminishing its own ability to check both executive overreach and judicial politicization.
A recent New York Times report found that Trump appointed appellate judges backed him 133 -12 in 2025. 92% of their votes favored the president who appointed them. Trump’s newly constituted Supreme Court favored him on Emergency Applications to stay adverse lower court decisions 23 – 4. These cases on immigration enforcement, the mass firing of civil servants, the President’s power to abolish agencies without congressional approval, and the scope of executive power are among the most controversial in the nation. By using its Shadow Docket, the Supreme Court effectively reversed 86% of lower court decisions adverse to the Trump administration. The decisions will remain in effect for an indefinite period, often without full briefing, oral argument, or a signed opinion. The Supreme Court now wields power without any transparency or accountability.
To fill out the scorecard, federal judges appointed by Democrats (Biden, Clinton, and Obama) voted against Trump 75%, 72%, and 70% of the time, respectively. Another example of political vs judicial process is the Court of Appeals for the First Circuit, located in liberal New England. It ruled against Trump’s policies 74% of the time.
This politicization of the judiciary is now embedded in its DNA.
Studies show that political affiliations even affect sentencing decisions. Democrat judges impose lighter penalties on criminals than Republican judges. A finding by the American Economic Association found “racial disparities in sentencing would be almost cut in half if federal district courts were composed of all Democrat- appointed judges.” Also, using data from over half a million cases, the journal found that Republican-appointed judges handed down longer sentences to black defendants, which linked judicial policies to racial disparities.
A 2025 study in: The Journal of Legal Analysis” analyzed 640,000 federal circuit court cases between 1985 and 2020. It found that the political composition strongly influences outcomes. Democrat-appointed judges support the less powerful litigants. In cases without power inequality, Democrat appellate judges were more willing to reverse lower court decisions. The same study found that in cases involving an individual and an institution, the panel is more favorable to the individual when more Democrat judges are on the panel.
When judges and justices predictably decide cases based on ideological alignment rather than impartial application of law to the facts, they cease to function as judges seeking to administer justice by following the laws enacted by Congress. They become political actors wearing black robes over their suits.
The broader problem is political conformity. Nearly all elected offices are held by members of the two major parties, and advancement increasingly depends on ideological loyalty and public signaling. Until recently, the judiciary stood apart from this conformity. Today, it is increasingly drawn into it.
Every judge should reflect on what it means for the nation’s future when all three branches of government are governed by partisan loyalty rather than constitutional duty.
William L. Kovacs served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. His book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. His second book, Devolution of Power: Rolling Back the Federal State to Preserve the Republic received five stars from Readers’ Favorite. He can be contacted at wlk@ReformTheKakistocracy.com
