Judge Matthew Kacsmaryk hasn’t shied from the spotlight in the few years since he was confirmed — after a few false starts — to the federal bench under then-President Donald Trump.
He knocked down Biden administration workplace protections for transgender people, agreed to hear a case in which anti-vaxxers are suing major media organizations for not publishing vaccine-related misinformation and handed down anti-administration decisions on immigration so egregious that the Supreme Court picked apart his shoddy reasoning.
This body of work significantly raised his profile, establishing him as a key link in the right-wing cause-to-favorable outcome pipeline. He’s amassed so many controversial cases in part because conservative groups are seeking him out, knowing that a likely favorable ruling from him will be followed by review from the right-wing Fifth Circuit Court of Appeals and then the majority-conservative Supreme Court.
So Kacsmaryk was already fairly well known when an anti-abortion group sought out his Amarillo court to file its twenty-years-after-the-fact challenge to the Food and Drug Administration’s approval of mifepristone. Mifepristone is usually taken with misoprostol to induce abortions, and medication abortions comprise over half of all abortions conducted in the United States each year.
Up until this weekend, the case was business as usual. Experts and court-watchers alike expected Kacsmaryk to rule in favor of the anti-abortion groups, no matter that much of their argument was premised on flatly false complaints about the riskiness of mifepristone.
If anything, the fact that he hadn’t ruled yet — and that weeks had elapsed after the last briefs were submitted — struck some as surprising.
“I don’t know why he’s waiting — maybe he’s a little uncomfortable being in the spotlight,” mused Carl Tobias, a professor at the University of Richmond’s school of law, in a recent interview. “Maybe he’s trying to show that he’s deliberating, but will still come out the same way.”
Or maybe he’s conducting the case in secret.
On Friday, observers noticed that a Department of Justice trial lawyer had filed a motion of appearance — despite there being no hearing or conference scheduled on the docket. MSNBC legal analyst Lisa Rubin added that there was a number skipped on the docket, which usually indicates a sealed filing.
A day later, the Washington Post confirmed that Kacsmaryk had scheduled a hearing in secret, only planning to reveal its existence to the public at the last minute, reportedly reasoning that the short notice might dissuade protesters from showing up. He’d told the lawyers involved on a Friday call that the hearing would be held on Wednesday, and that he’d wait to put it on the public docket until late Tuesday, per the report.
This move rankles all the more, considering that Kacsmaryk fancies himself greatly opposed to keeping court proceedings out of the public eye. Under “judge specific requirements” on his page of the Northern District of Texas website, it says that: “The Court ‘heavily disfavor[s] sealing information placed in the judicial record’ and discourages such requests.” It adds that people seeking to file under seal must, among other things, “brief the legal authorities indicating the risks of disclosure outweigh the public’s right to know.”
Kacsmaryk finally entered the hearing on the docket early Monday evening. His courtroom deputy did not immediately respond to TPM’s request for comment.
Should Kacsmaryk rule in favor of the anti-abortion groups, the FDA’s approval of the drug would likely be nullified. But some legal scholars have argued that the administration could leave the drug on the market (as many non-FDA approved drugs are), using discretion with its enforcement powers.
Sen. Ron Wyden (D-OR) has been pushing the idea in a series of Senate floor speeches, urging the administration to ignore Kacsmaryk’s likely opinion and keep mifepristone accessible.
He told TPM that he has been in communication with the White House about his idea, but declined to characterize its receptiveness. The White House did not respond to TPM’s questions.
“I believe that, under the law today, the proper response is for the Food and Drug Administration to ignore a judicial decision like what’s being talked about,” Wyden told TPM. “That’s what I think is allowed under existing law, that’s what’s in the public interest.”