Drastic rulings potentially altering the future of medical abortions in this country have been coming near daily in the last few weeks, resulting in a furious frenzy of filings that quickly made their way up to the Supreme Court.
Judge Thomas Rice from the Eastern District of Washington has been caught up in the maelstrom, as he handed down a decision last Friday ruling that 17 states plus Washington D.C. have to keep mifepristone available as usual in their borders.
That ruling came a few minutes after Judge Matthew Kacsmaryk in the northern district of Texas ruled to stay the Food and Drug Administration’s original approval of mifepristone nationwide. The Fifth Circuit Court of Appeals, a few days later, disagreed with Kacsmaryk on the FDA’s original approval of the drug, but upheld challenges to the FDA’s rules expanding access to the drug since 2016. The Supreme Court granted the Justice Department’s emergency motion to stay the Texas and Fifth Circuit Court rulings Friday afternoon.
Rice responded to government lawyers’ request to tell them how to navigate the conflict on Thursday. But he didn’t do just that. In a six-page ruling (more like four without the cover sheet and signature), he spent three pages quoting the Ninth Circuit Court of Appeals at length in regards to the danger of district judges issuing national injunctions.
It’s an extremely thinly veiled critique of Kacsmaryk, who does this all the time. These kinds of national injunctions are also a critical aspect of the right-wing judge shopping process that has so rewarded ideological litigants. They locate a judge — often a Trump appointee, often in a one- or two-judge division, often Kacsmaryk — and file their lawsuit in his court.
Kacsmaryk, who used to work as an anti-abortion lawyer, gets virtually every case filed in Amarillo. And he also has the power to issue national injunctions — e.g. to make his ruling bind the entire country. Kacsmaryk, who’s nakedly motivated by politics, doesn’t hesitate to wield this enormous power early and often.
At best, these litigants then get the dice roll of a Fifth Circuit Court of Appeals panel, which, because of the makeup of the Fifth Circuit, will likely be stacked with Republican appointees. At worst, they get whatever policy they want instituted across the country for however many weeks, months, or years it holds before getting overturned on appeal.
Rice, clearly seething, acted with judicial restraint in his ruling: He applied it only to the states and district involved in the case.
“This Court declined to issue a nationwide injunction and only entered a preliminary injunction as it applies to Plaintiff States and the District of Columbia,” he wrote in his Thursday guidance, going on to quote, “As the Ninth Circuit recently held: Although ‘there is no bar against … nationwide relief in federal district court or circuit court,’ such broad relief must be ‘necessary to give prevailing parties the relief to which they are entitled.’”
He went on to list the many dangers higher courts identified in habitually using nationwide injunctions.
“The Supreme Court has repeatedly emphasized that nationwide injunctions have detrimental consequences to the development of law and deprive appellate courts of a wider range of perspectives,” he wrote.
He added that it makes it more difficult for non-parties to participate in cases decided so abruptly. And then he got to the meat of it:
“Nationwide injunctions are also associated with forum shopping, which hinders the equitable administration of laws,” he wrote tersely, a clear reference to Kacsmaryk.
It’s about as aggressive as judges get with each other.
The judge shopping problem has moved from legal arcana to a wider realization that the system is being gamed. Sen. Ron Wyden (D-OR), in his calls for the Biden administration to ignore these right-wing rulings on mifepristone, has highlighted the judge shopping that started the suit as a primary reason why.
The Justice Department itself has started to rankle in its filings, asking for transfers in venue as it keeps getting sent back to the same two or three Trump appointees in random courthouses in Texas.
Unfortunately, the easiest fix would be a new law, perhaps requiring requests for national injunctions of federal agency actions to go through a random three-judge panel with review by the Supreme Court, making it harder for litigants to choose their judges. It’s difficult to imagine that the Republican House would have much appetite for changing a system that’s been serving its interests so well. And even on the Democratic side, few members are focused on this piece of the abortion fight.
But here’s Wyden, back in February, predicting how Kacsmaryk would rule:
“It will come from a lawless judge, picked by the litigants with no standing to bring a case that should be barred by the statute of limitations and has absolutely no merit,” he said. “There are moments in history where Americans and their leaders must look at circumstances like this one and say, ‘Enough.’ Not ‘let’s see how the appeals process plays out,’ or ‘let’s hope Congress can fix this down the road.’ Just, ‘Enough.’”