Right-Wingers Have A New, Very Dependable Strategy To Game The Courts. Can It Be Stopped?

You would think, based on the flurry of litigation unfolding there, that a lot of drama is going down in Amarillo, Texas. 

Of the couple dozen lawsuits Texas Attorney General Ken Paxton (R) has filed against the Biden administration, over a third have been funneled through the relatively small city, despite its distance from the state capital. 

But it’s got one thing going for it: Trump appointee Judge Matthew Kacsmaryk, who has already amenably batted down Biden administration policies on immigration, access to contraception and LBGTQ protections. Helpfully for Paxton and other right-wing litigants, Kacsmaryk gets 100 percent of the criminal and civil cases filed in the Amarillo division of the Northern District of Texas. 

Kacsmaryk has come under nationwide scrutiny while he mulls a case shopped to him to revoke the Food and Drug Administration’s 20-year-old approval of mifepristone, a drug prescribed to induce abortion. 

And Texas works out particularly well for judge shoppers — they can get a case into Kacsmaryk’s hands in Amarillo, or maybe into Reed O’Connor’s in Wichita Falls or Drew Tipton’s in Victoria — resting easy in the knowledge that the state is controlled by the ultra-conservative Fifth Circuit Court of Appeals. That leaves as liberals’ greatest hope for intervention…the Supreme Court. 

This judge-shopping is a new flavor of an older, and bipartisan, practice. Opponents of Trump administration policies often sued in states governed by the Ninth Circuit Court of Appeals, then very liberal. Blue states have also chosen to file in generally friendly district courts — say, San Francisco — but which have an assortment of judges to be randomly assigned.

But the surgical specificity of targeting divisions of district courts overseen by one or two judges is newer. And it’s essentially a win-win proposition. Even if the district judge of choice is overturned at a higher level, he has the power to issue a nationwide injunction, blocking the administration policy not just for the parties on the lawsuit, but for the entire country.

Supporters of the Biden administration and many legal experts have railed against the dynamic, and at least one right-wing Supreme Court judge isn’t thrilled that a single lower court judge can put the brakes on any administration policy that comes before him.

“Talk about ways in which courts can interfere with the processes of government,” Justice Neil Gorsuch said during recent oral arguments on the Biden administration’s student debt plan. “Two individuals in one state who don’t like the program seek and obtain universal relief, barring it for anybody anywhere.”   

The Justice Department too has been complaining about this gamesmanship more and more, accusing Paxton of judge shopping through court filings three times this year alone. 

Fixes

The problem is not unprecedented, nor is fixing it. Chief Justice John Roberts raised in his 2021 annual report that a district judge in Waco, Texas was openly inviting patent holders to sue in his court — and was consequently overseeing nearly a quarter of all patent cases across the entire country. The chief judge of the Western District of Texas, in response, changed the rules so patent cases are randomly assigned among the 12 judges in the district. 

“Every single court could do that,” Katherine Macfarlane, a law professor specializing in federal district courts’ local rules and practices, told TPM. “Really in the interest of fairness, it has to be across the board.” 

But aside from court-by-court administrative fixes — “the local chief judge fiddling around with assignments,” as Carl Tobias, a professor at the University of Richmond’s school of law, put it — an across-the-board fix would likely require congressional action. 

The most popular one in the eyes of experts that study this issue is the three-judge panel: the idea that cases seeking a national injunction of federal agency action would be assigned not to one district judge, but to a panel of three of them. 

These courts were created in 1910 for cases where people were seeking to enjoin enforcement of state laws (and, by 1937, federal laws) on federal constitutional grounds. Faced with concerns similar to those raised by the Texas judge-shopping today, Congress wanted to make these injunctions harder to obtain, to curtail the power of a single district judge and to increase the chances that such an injunction would result from a better-reasoned decision.

This process was ended in 1976 except for redistricting challenges, which continue to be decided by three-judge panels. 

“It became so burdensome that they rescinded it,” Tobias said. “It was very resource intensive.” 

At least one of those burdens has decreased significantly, though. With the three-judge panels, the next step in judicial review was appeal to the Supreme Court, not the usual appellate court circuit. But the Supreme Court has dramatically lessened its caseload in recent decades, reducing the risk of overwhelming the highest court with these appeals.

Still, the political environment remains charged. And this remedy, while right-wing litigants are gleefully and routinely having great success in blocking Biden administration policies they don’t like, would likely be a hard sell in the Republican House. 

“Congress could come in here — but given its present composition, that’s not gonna happen,” Tobias said.