The Justice Department’s frustration with right-wing judge shopping has been seeping into its briefs more and more.
And it’s had lots of opportunities to call out the gambit. Routinely, right-wing litigants shop an anti-Biden administration case to a couple of judges who get assigned all or virtually all of the cases in their divisions. Judges Matthew Kacsmaryk and Reed O’Connor in Texas have been choice picks for such plaintiffs. Those Texas district judges are governed by the Fifth Circuit Court of Appeals, another friendly venue for the conservatives. That leaves the 6-3 right-wing Supreme Court majority as the administration’s only hope for salvation.
Conservative groups have used this pipeline for cases on everything from immigration to abortion to, recently, the Affordable Care Act. In a case originating in, you guessed it, O’Connor’s court, a handful of businesses and individuals challenged the Affordable Care Act requirement that health insurers provide free coverage of a bevy of preventative services. These include things like cancer screenings, basic vaccinations and vision screening for newborns.
As is dependably part of the judge shopping pipeline, O’Connor granted relief to various plaintiffs — but went far beyond that, also canceling out all actions the federal government has taken to implement that part of the law since 2010, and preventing government officials from enforcing the challenged coverage requirements nationwide.
These national injunctions are a key part of the appeal of this scheme; they imbue one far-right, Donald Trump appointee with the enormous power to dictate federal government policy for the entire country. And the DOJ has, increasingly, been calling it out. As the department points out, the scheme creates a structure where the government could win in court 99 out of 100 times, but still see its policy completely blocked from one loss.
Such a dynamic, especially as applied to agency cases, the Justice Department writes in its appeal of O’Connor’s decision to the Fifth Circuit, “would transform every district judge into a miniature Supreme Court.”
In its recently filed appeal, the Justice Department isn’t challenging the relief granted to the named plaintiffs. Instead, the government is targeting the rest of the relief that binds the whole country.
“The issue before the Court is narrow,” DOJ lawyers write. “The government is not asking the Court at this juncture to consider the merits of plaintiffs’ claims. Nor is the government asking the Court to stay the part of the final judgment that provides relief directed to the prevailing plaintiffs.”
“The only issue at this stage is whether to stay the sweeping relief that enjoins the defendant agencies from enforcing the challenged coverage requirements nationwide and vacates universally all agency actions that implemented or enforced those coverage requirements since March 2010,” they add.
The DOJ knows that its odds of winning at the uber-conservative Fifth Circuit are always low, and appealing to this Supreme Court for help in reining in power-drunk Trump judges would usually appear to be a losing battle. But the government has at least one likely, and unusual, ally on the high court.
Justice Neil Gorsuch is quoted twice in the DOJ’s brief, once questioning how a district court ordering the government to take (or not take) action “with respect to those who are strangers to the suit” is “acting in the judicial role of resolving cases and controversies.”
Gorsuch’s dislike of national injunctions is well known. He brought it up during arguments over Biden’s student debt relief plan in February: “Talk about ways in which courts can interfere with the processes of government,” he marveled. “Two individuals in one state who don’t like the program seek and obtain universal relief, barring it for anybody anywhere.”
It’s an issue that reshuffles the usual alliances, as alums of the D.C. Circuit — Chief Justice John Roberts and Justices Ketanji Brown Jackson, Clarence Thomas and Brett Kavanaugh — who oversaw a very high number of cases dealing with executive branch agencies tend to be extremely protective of these types of relief.
The DOJ lawyers also, optimistically, throw Thomas a bone, quoting a concurrence where he pointed out that nationwide relief encourages “forum shopping.”
Without control of the House of Representatives, congressional Democrats are unlikely to pass any legislation to address this burgeoning crisis of the courts. The Supreme Court, then, might be the best option available to dethrone the Texas duo.
Read the DOJ motion here:
