One of the biggest impediments to President Joe Biden’s ability to govern is a small crew of Republican-appointed federal trial judges, all of whom sit in Texas.
In August of 2021, for example, a Trump-appointed judge named Matthew Kacsmaryk ordered the Biden administration to reinstate a Trump-era immigration policy, known as “Remain in Mexico,” which forced many migrants to live in awful conditions on the Mexican side of the US/Mexico border. Although the Supreme Court eventually determined that Kacsmaryk egregiously misread federal immigration law, it left his order in place for nearly a year — and the Court’s most recent decision concerning Remain in Mexico makes it very easy for Kacsmaryk to seize control of federal border policy once again.
Indeed, the status of this case, known as Texas v. Biden in Kacsmaryk’s court, is changing almost by the hour. On Monday, Kacsmaryk lifted his original order requiring the Biden administration to implement Trump’s policy — something he had to do given the Supreme Court’s decision — and the administration swiftly announced that it would wind down the program.
But almost as soon as Kacsmaryk lifted his original order, Texas Attorney General Ken Paxton filed a new motion asking Kacsmaryk to seize control of federal border policy once again.
This one Trump judge’s ability to override an elected president’s policies and assume the powers of a Cabinet secretary is just one aspect of a much larger problem. With the Supreme Court’s tacit blessing, Texas officials and other right-wing litigants can handpick the trial judge who will hear their challenges to Biden administration policies. And when those handpicked judges overreach in ways that even this Supreme Court deems unacceptable, decisions by men like Kacsmaryk can remain in place for as much as a year — effectively replacing governance by an elected presidential administration with rule by unelected Republican judges.
In another, similar case, the Supreme Court allowed a Trump judge named Drew Tipton to temporarily strip Homeland Security Secretary Alejandro Mayorkas of much of his authority over Immigration and Customs Enforcement (ICE). This is the same Drew Tipton who issued a legally dubious order six days after Biden took office, which blocked the Biden administration's call for a 100-day pause on deportations while the new administration was figuring out its immigration policies.
And then there’s Judge Reed O’Connor, the Fort Worth, Texas, judge known for rubber stamping nearly any legal outcome requested by Republicans. O’Connor is best known for his order in Texas v. United States, holding that Obamacare must be repealed in its entirety. That decision was so poorly reasoned that seven justices — including four Republican appointees — eventually ruled that no federal judge had any business hearing Texas’s anti-Obamacare lawsuit in the first place.
But that experience did nothing to humble the Rubber Stamp of Fort Worth. In January, O’Connor forced the US Navy to deploy personnel that it deemed unfit for deployment because they are not vaccinated for Covid-19. The Supreme Court blocked most of O’Connor’s ruling in March, with Justice Brett Kavanaugh writing that the highly partisan judge “in effect inserted [himself] into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
Meanwhile, O’Connor is widely expected to strike down the Affordable Care Act’s provisions requiring health insurers to cover a wide range of vaccinations and preventive care in a pending case called Kelley v. Becerra.
The fact that all these cases — and this is just a sample of the many policy-setting lawsuits being shunted to a handful of the most conservative judges in Texas — are winding up before a few GOP-appointed judges is not a coincidence. It is a deliberate strategy, made possible by procedural rules that effectively allow litigants to select which judge will hear their lawsuits, and by all appearances, intentionally pursued by the Texas attorney general’s office.
These Texas federal judges’ orders, moreover, appeal to the US Court of Appeals for the Fifth Circuit, almost certainly the most conservative federal appeals court in the country, which tends to regard those orders with the same level of partisanship that is a feature in Kacsmaryk, Tipton, and O’Connor’s courtrooms.
So the Biden administration’s policies are routinely blocked, not because an impartial judge gives those policies a fair hearing and determines them to be illegal, but because Republican litigants can ensure that lawsuits seeking to undermine President Biden are heard by some of the most partisan judges in the country.
Why Texas gets to choose which judges hear its lawsuits
Chance normally plays a big role in federal litigation. When a plaintiff files a lawsuit, that suit is typically assigned to a district judge at random from among the federal trial judges who sit in the same geographic region. On appeal, the overwhelming majority of cases are heard by three-judge panels selected at random from among an appeals court’s judges. Only at the Supreme Court level, where a fixed panel of nine justices hears all cases, are litigants normally sure which judges will hear their case.
In Texas, however, things work a little differently. Texas is divided into four large geographic regions known as “districts,” each overseen by a federal district court. These districts are further subdivided into smaller “divisions.” Anti-Obamacare Judge O’Connor, for example, sits in the Fort Worth Division of the Northern District of Texas.
A problem arises, however, because federal law permits each federal district court to determine how cases are divided among the court’s judges, and Texas’s district courts divide their work in ways that make it easy for plaintiffs challenging a federal policy to choose which judge will hear their case.
When a plaintiff files a lawsuit in a division of one of Texas’s federal district courts, their case will typically be heard by one of the judges in that division. Some divisions, however, are fairly small and may have a single judge who hears all or nearly all of the cases. In the Amarillo Division of the Northern District of Texas, for example, 95 percent of all civil cases are assigned to Kacsmaryk. In the Victoria Division of Texas’s Southern District, Tipton hears virtually all civil cases.
To be clear, it’s unlikely that these geographic case assignment rules arose from an intentional effort to let litigants choose their own judges — they are most likely a response to the fact that Texas is very large, and litigants don’t want to travel hundreds of miles to a federal courthouse in a distant part of the state every day for a lawsuit — but they’ve certainly had that effect. While the Texas case assignment rules would be benign in a world where federal judges can be trusted to be fair and impartial, they take on a much more sinister cast in a world where judges like O’Connor exist. It’s the combination of well-known judges who act as rubber stamps for a political party, and local court rules that frequently allow plaintiffs to select which judge will hear their case, that effectively rigs Texas’s federal court system for the GOP.
Many normal litigants still file at their closest federal courthouse. But if you are a plaintiff determined to undermine Biden, why would you file a lawsuit in Austin or Dallas when you can drive a few hours to a courthouse presided over by a Kacsmaryk or a Tipton?
The Texas attorney general’s office is particularly ruthless in doing just that, manipulating the rules to ensure that its lawsuits will be heard by the GOP’s allies on the bench.
As Steve Vladeck, a law professor at the University of Texas, documented in a recent amicus brief filed in the Supreme Court, “the Texas Attorney General appears to have filed 19 cases in the Texas district courts” against the Biden administration. Of these 19 cases, “judges appointed during Republican presidencies are presiding in all but one.”
Texas achieved this feat by being very selective about where it files lawsuits. As Vladeck writes, Texas filed 12 of its 19 lawsuits against the Biden administration “in divisions where judges appointed during Republican presidencies preside over 100 percent of newly filed civil cases.” The remaining seven “were filed in divisions where judges appointed during Republican presidencies preside over 95 percent of new civil cases.”
Notably, the Texas AG’s office has not filed a single case in Austin — the city where that office is actually located — a choice that most likely can be explained by the fact that half of all federal cases filed in Austin are heard by Judge Robert Pitman, an Obama appointee.
The Supreme Court has largely encouraged this behavior
Although the Supreme Court has, at times, disagreed with the judges Texas’s Republican leaders selected to hear their lawsuits, it’s done nothing to discourage the Texas AG’s judge-shopping. Indeed, if anything, it’s encouraged it.
Recall, for example, the Supreme Court’s decision in Biden v. Texas, which determined that Judge Kacsmaryk mangled federal immigration law when he ordered the Biden administration to reinstate the Remain in Mexico program. While that was a victory, both for Biden and for the rule of law, it was an exceedingly narrow one.
Ten months before the justices handed down their decision rebuking Kacsmaryk, the Biden administration asked the Supreme Court to block his order while the case was making its way through the appeals process. But the Court refused to do so, with only its three Democratic appointees registering their dissent. That meant that Kacsmaryk wielded much of DHS Secretary Mayorkas’s policymaking authority for nearly an entire year.
Then, even when the Court did rule against Kacsmaryk in its Biden decision, it explicitly left open several legal questions which Kacsmaryk could easily latch onto to seize control of federal border policy once again. Texas has already asked Kacsmaryk to do so.
Just a few weeks after its decision in Biden, moreover, the Court issued a similar order to the one allowing Kacsmaryk to set border policy for 10 months. In this case, Judge Tipton effectively placed himself in charge of ICE’s decisions about which immigrants to target for enforcement actions by striking down a memo from Mayorkas that set enforcement priorities for the agency.
Tipton’s order is egregiously wrong — among other things, a federal statute explicitly gives Mayorkas the power to establish “national immigration enforcement policies and priorities.” Nevertheless, the Supreme Court voted 5-4 to leave that order in place, at least until the justices can fully consider the case later this year. Even if the Court does correct Tipton’s error in this case, it could feasibly not hand down its decision until June of 2023 — leaving Tipton as the de facto head of ICE for nearly a full year.
Notably, the Court was far quicker to intervene when lower court judges blocked Trump administration policies. In early 2020, liberal Justice Sonia Sotomayor warned that her GOP-appointed colleagues were “putting a thumb on the scale in favor of” the Trump administration in cases asking the Court to temporarily block lower court decisions while a case was still on appeal.
Around the same time, conservative Justice Neil Gorsuch complained about a system where any one of the “more than 1,000 active and senior district court judges, sitting across 94 judicial districts” could block one of the Trump administration’s policies. Although liberal litigants typically did not engage in judge-shopping to the same degree that Texas now does, litigants suing the Trump administration would often file lawsuits in left-leaning districts such as the Northern District of California.
In any event, Gorsuch appears to have lost interest in solving the problem of judge-shopping and nationwide injunctions after a Democrat moved into the White House.
So what can be done?
Every year Chief Justice John Roberts releases a “year-end report on the federal judiciary.” The document is normally quite brief; his 2021 report was only nine pages long, and three of those pages were charts and statistics describing the workload of the federal courts.
And yet, Roberts devoted a considerable amount of that report to what he described as “an arcane but important matter of judicial administration.” Patent litigators throughout the country were taking advantage of the same judge-shopping rules that Texas uses to its advantage in order to shunt a high percentage of patent infringement suits to a single federal trial judge in Texas (not one we’ve discussed here). And Roberts announced that he’d asked one of the federal judiciary’s internal governing bodies to look into this problem of judge-shopping in patent litigation.
In what was likely a response to Roberts’s rebuke, the Western District of Texas recently announced that it would randomly assign patent cases to one of 12 judges, thus ending this one judge’s monopoly over so many of these cases. But Texas’s federal courts have not taken similar action to stop Texas Republicans from shopping around for sympathetic judges. And Roberts has not urged them to do so.
If the courts want to solve the problem of judge-shopping, it would not be hard for them to do so. One solution is to apply the same rule to Texas’s anti-Biden litigation as the Western District of Texas now applies to patent litigation — if a party seeks an order blocking a federal policy, that case will be randomly assigned to any judge within the entire district court where it is filed, not just one in the smaller division.
Alternatively, a court could assign lawsuits seeking a nationwide injunction against a federal policy to a panel of three judges. That’s the solution Fifth Circuit Judge Gregg Costa proposed in a 2018 piece published by the Harvard Law Review’s blog.
In any event, the details of such a solution don’t matter all that much. The important thing is that litigants who are actively trying to sabotage the United States government should not be allowed to handpick judges who share their agenda. For the moment, however, the courts seem to lack the will to address this problem. Texas Republicans can shop around for the judges they want, and that seems to suit a Supreme Court dominated by Republican appointees just fine.