Federal Judges Were Once All Reliably Bad On Prisoners’ Rights Issues. COVID-19 Changed That.

This commentary is part of The Appeal’s collection of opinion and analysis.

The COVID-19 crisis in state prisons and local jails is a result of many long-standing phenomena: inadequate carceral healthcare, overcrowding, societal contempt for people in prison, and limits on the public’s access to information about carceral systems. The failure to react early to the novel coronavirus was thoroughly bipartisan, with blue states failing alongside red ones, and Democratic politicians at the state and local level abdicating their responsibilities over incarcerated people just as much as Republicans.

But there is another story behind the crisis: President Trump has appointed a quarter of active federal appellate judges, and they have proved decisive in undermining legal efforts to force prisons and jails to constitutionally address the coronavirus.

Outbreaks of COVID-19 in the United States’s carceral systems were inevitable. But a well-organized effort among civil rights attorneys quickly resulted in lawsuits against state prisons and local jails that failed to protect incarcerated people. The litigation sought remedial measures such as the release of the most vulnerable on the basis of medical conditions and safety measures to limit the spread among the rest of the population. 

The lawsuits had early success winning emergency relief from federal trial judges. In April, an incarcerated class alleged that the staff of the Oakland County jail, a vast complex with almost 1,600 beds outside of Detroit, did not consistently wear masks or provide soap to the detainees. It also alleged that the jail administration threatened detainees for not working even while sick. After one incarcerated person died of COVID-19 in a quarantined cell, jail staff moved his two cellmates back into the general population. In May, a federal district court judge sided with the plaintiffs and issued an injunction against the county jail. But two months later, a three-judge panel vacated the opinion. In a 2-1 split, with both judges in the majority appointed by President Trump, the Sixth Circuit Court of Appeals concluded that “the steps that jail officials took to prevent the spread of COVID-19 were reasonable.”

Similar scenarios played out with the jails in both Miami-Dade County and Chicago’s Cook County, which at one point had the biggest COVID hotspot in the U.S. With the majority including two Trump appointees, the Seventh Circuit vacated aspects of a district court decision that required socially distanced housing at the Cook County jail. Similarly, a Trump appointee to the Eleventh Circuit wrote for a 2-1 majority vacating a district court’s injunction, ordering relief to detainees at Miami-Dade County’s jail. He wrote that the jail could not be blamed for failing to enforce social distancing because it was impossible, and “failing to do the ‘impossible’ doesn’t evince indifference,” the legal standard at issue.

In an April case against the Orange County jail complex in California, a class of detainees said there was a lack of soap or COVID-testing, an inability to social distance, and the commingling of nominally quarantined detainees with the general population. The jail had over 100 confirmed COVID cases. These detainees, too, won an order demanding that the jail take remedial measures, such as waiving the “co-pays” that they must pay in order to receive medical treatment. The jail sought a stay from the Ninth Circuit Court of Appeals to pause the court’s order. But this time, the appellate panel was composed of two Democratic appointees and one Trump appointee. The panel split along party lines to uphold the trial court’s decision. The jail appealed to the Supreme Court, and in August, five conservative justices—including Trump appointees Neil Gorsuch and Brett Kavanaugh—sided with the Orange County jail. The four Democratic appointees to the Court noted that they would not have granted the stay.

In these COVID lawsuits—the four most prominent brought against state prisons or local jails—eight Trump-appointed judges or justices got a vote compared to eight judges or justices appointed by any Democratic president. All eight Trump appointees voted against the prisoner classes while all eight Democratic appointees voted for them, including Judge Susan Graber, Justice Stephen Breyer, and other moderate judges known for often deferring to the government. In all four cases, the Trump votes were ultimately decisive.

Before COVID-19, this outcome was not self-evident. The treatment of people in prison was once a highly salient and polarized issue, but that era has somewhat passed. Supreme Court Justices Antonin Scalia and Clarence Thomas were appointed by Republican presidents in the 1980s and 1990s. Scalia, who served until his death in 2016, and Thomas were openly contemptuous of plaintiff-friendly prison jurisprudence and argued it should no longer exist. In their view, the Eighth Amendment’s cruel and unusual punishment clause does not apply to prison conditions. Such a ruling would return incarcerated people to a pre-civil rights movement legal status referred to as “slaves of the state.” 

But neither Justices Gorsuch nor Kavanaugh joined the Supreme Court with well-defined records on prison conditions, and the issue attracted little attention during their confirmations. Neither justice has demonstrated a significant interest in prison conditions since joining the Court, and the same could be said for the Court as an institution. Despite taking up 60 to 70 cases annually, the Supreme Court has not decided to hear a significant prison case in several years even though such cases make up over ten percent of the federal trial docket.

Several generations of Democratic judges have also been largely indifferent to prison conditions. In a 2015 case, the Supreme Court considered whether a prison had met the high bar of limiting religious practices, which they are only permitted to do if it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In Holt v. Hobbs, an Arkansas prison had forbidden a Muslim prisoner from growing a half-inch beard. The government identified “security” as its compelling interest for this rule, arguing that the man could hide contraband in his half-inch beard. The Court unanimously rejected the argument. But Justice Sonia Sotomayor, the most liberal justice on criminal legal system issues and race, published a separate concurrence to make it clear that although she agreed with ruling against the prison on these extreme facts, prisons were still owed great deference in matters of security on any closer call. This kind of reasoning at the highest court, from the most liberal justice, is precisely why a decisive split by political party on COVID-19 class actions was not necessarily predictable. 

But the chasm of outcomes nonetheless occurred, and it is particularly notable on the eve of a presidential election. If Joe Biden wins, his judicial appointments will most likely look like those from a third term of President Barack Obama—mostly moderate liberals, valued more for their experience and diversity than for their ideological purity. There is no doubt that this slate of judges would hold radically different views on abortion, arbitration, class actions, immigration, and numerous other issues than judges appointed in a second Trump term. But before the COVID-19 lawsuits, where the votes of Trump’s appellate judges swayed the outcomes and unanimously favored the prisons or jails, it was less clear that there would be drastic differences between judges appointed by Biden and Trump on prisoners’ rights issues. The biggest pandemic in a century has radically altered that calculus. In the COVID-19 era, the question of whether people in prison received relief from the federal courts turned entirely on Trump’s appointments to the appellate bench. Prisoners’ rights issues turned out to be on the 2016 ballot after all—and they may well be on the ballot again in November. 

Samuel Weiss is the executive director of Rights Behind Bars, which represents incarcerated people in civil rights lawsuits concerning their conditions of confinement.