By Nate Raymond
BOSTON (Reuters) -A federal judge in Boston had some pointed words for Donald Trump as he issued one of the dozens of decisions by courts in four New England states against the Republican president in challenges to the legality of his policies.
“I fear President Trump believes the American people are so divided that today they will not stand up, fight for and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected,” U.S. District Judge William Young wrote in ruling that Trump’s administration was violating free speech rights by moving to deport non-U.S. citizen pro-Palestinian activists at American colleges.
Young’s September 30 ruling was an example of how federal judges in Massachusetts, Rhode Island, New Hampshire and Maine have become key players in the legal wars over Trump’s policies since he returned to office in January, as litigants seek a friendly venue to challenge the president.
A Reuters analysis found that at least 72 lawsuits challenging Trump’s policies have been filed in federal courts in those four states by plaintiffs, including Democratic state attorneys general, advocacy groups and institutions targeted by the administration. Trial court judges have made at least an initial decision in 51 of those cases, ruling against Trump in 46 of them, the analysis showed.
These have included challenges to Trump’s policies to restrict birthright citizenship, gut the U.S. Department of Education, revoke the legal status of thousands of migrants and fast-track deportations of migrants to countries other than their own – so-called “third countries” – including politically unstable South Sudan.
While nationwide the U.S. judiciary is closely divided among judges appointed by Democratic and Republican presidents, in these four states 17 of the 20 active federal trial judges are Democratic appointees. These states fall under the umbrella of the Boston-based 1st U.S. Circuit Court of Appeals, whose five active judges all were appointed by Democratic presidents while a Trump nominee awaits Senate confirmation.
“I don’t think there is another court that, in terms of composition, has those sorts of odds for groups advocating on the liberal side,” University of Virginia law professor Payvand Ahdout said of the 1st Circuit.
Ahdout said the ideological composition of that appellate court has turned the New England federal trial courts below it into attractive litigation venues offering the “best shot” for challengers to Trump’s policies.
The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president’s policies, has issued 15 decisions, granting the administration’s request to set aside judicial orders only three times.
To be sure, the 1st Circuit does not have the final word on cases. It is one of the 12 regional federal appellate courts that cover specific geographic areas of the United States. All of these are one step below the U.S. Supreme Court, whose 6-3 conservative majority has moved American law dramatically rightward under Chief Justice John Roberts.
The administration repeatedly has gone to the Supreme Court with emergency requests to implement policies impeded by lower courts, and the justices have almost always backed Trump. The Supreme Court already this year on seven occasions fully or partially put on hold judicial orders against Trump policies arising out of the 1st Circuit’s jurisdiction in cases concerning the Department of Education, legal status of migrants and third-country deportations.
White House spokesperson Abigail Jackson said in a statement to Reuters that the administration’s policies have been “consistently upheld by the Supreme Court as lawful despite an unprecedented number of legal challenges and unlawful lower court rulings from far-left liberal activist judges.”
Trump himself has criticized some of the New England judges. After Boston-based U.S. District Judge Brian Murphy blocked several deportations to South Sudan, Trump called him and other judges “out of control.” And Trump labeled Boston-based U.S. District Judge Allison Burroughs, who ruled against the administration in a case involving Harvard University, a “total disaster.”
“Regardless of where Democrats try to file their challenges, our winning will continue,” Jackson said.
FORUM SHOPPING
The idea of “forum shopping,” seeking a friendly legal venue, is nothing new, as litigants across the political spectrum long have steered cases to ideologically sympathetic judges. For instance, conservatives challenging the agenda of Trump’s Democratic predecessor Joe Biden flocked to Texas courthouses stocked with Republican-appointed judges to challenge policies concerning LGBT rights, immigration, student debt relief and gun control.
The regional federal appellate court that has jurisdiction over the most challenges this year to Trump’s policies is the one that covers Washington, D.C., as might be expected considering it is the seat of the U.S. government. But the courts under the 1st Circuit have attracted the second-most such lawsuits, according to data from Just Security, an online publication based at New York University School of Law.
During Trump’s first term in office from 2017 to 2021, the federal courts of Northern California were a favored venue for legal challenges. Trump called the San Francisco-based 9th U.S. Circuit Court of Appeals, which handles appeals from there, a “disgrace” after it ruled against him in cases including his travel ban targeting people from several Muslim-majority countries, a policy later allowed by the Supreme Court.
Yet by the end of his first term, Trump had appointed 10 judges to the 9th Circuit, reducing the likelihood that Democratic appointees would dominate its judicial panels that decide appeals.
‘KNOW WHAT YOU’RE GETTING’
While the Supreme Court has backed the administration in some important cases this year arising from the 1st Circuit, the Justice Department has not yet asked the justices to review some other adverse rulings from judges in the region.
That means, for example, that decisions by judges in Boston and Providence, Rhode Island, remain in place blocking the administration’s efforts to make changes in federal elections including limits on counting mail-in ballots, cap federal research funding to universities and disfavor arts organizations seeking grant funding because they support “gender ideology.”
Among the rulings the administration has not asked the Supreme Court to stay was one by Providence-based U.S. District Judge John McConnell, an appointee of Democratic former President Barack Obama, blocking a sweeping federal funding freeze that Trump’s White House budget office issued in January.
Until this year, the Rhode Island court rarely heard such cases. Yet when deciding where to file the funding freeze case, Democratic Rhode Island Attorney General Peter Neronha said the states pursuing the challenge considered New York City before settling on Providence, whose three active judges are, in his words, “known quantities.”
“You kind of know what you’re getting,” Neronha told Reuters. “You have some confidence that you’ll get a decision that will be well-reasoned and based on the law.”
Democratic state attorneys general have filed 43 lawsuits in which multiple states have challenged Trump policies this year. Of those, 26 have been brought in Massachusetts (13), Rhode Island (12) and the 1st Circuit appellate court directly (one).
Judges in Massachusetts and Rhode Island in the past two months have blocked the administration’s cancellation of Harvard’s federal funding, its immigration-related conditions on disaster aid and housing grants, and its bid to exclude children of certain migrants from the federally funded Head Start preschool program.
Burroughs, an Obama appointee, wrote in the Harvard ruling that courts must “step up” to safeguard free speech rights “even if doing so risks the wrath of a government committed to its agenda no matter the cost.”
‘WE THE PEOPLE’
Young was appointed to the bench in 1985 by Republican former President Ronald Reagan.
The judge’s docket remains filled with Trump-related cases. The Supreme Court put a hold on one of his rulings reinstating diversity-related National Institutes of Health research grants. Meanwhile, Young is weighing challenges on issues including the administration’s halting of wind energy projects, its gutting of climate regulations and its weakening of government vaccine policies.
In his ruling on targeting campus activists for deportation, Young found that Trump’s policy violated the U.S. Constitution’s protection against government abridgment of free speech. The judge also included in his written decision part of a postcard he received from an anonymous sender who asked him: “Trump has pardons and tanks … What do you have?”
“Alone, I have nothing but my sense of duty. Together, We the People of the United States – you and me – have our magnificent Constitution,” Young wrote, quoting the document’s preamble. “Here’s how that works out in a specific case.”
(Reporting by Nate Raymond in Boston; Editing by Will Dunham and Alexia Garamfalvi)
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