Last week, the Justice Department decided to confront one of the most pernicious and exploited glitches in America’s courts.
There are a handful of federal trial judges in Texas — Matthew Kacsmaryk, Drew Tipton, and Reed O’Connor are probably the best known among them — who have largely behaved as rubber stamps for whatever far-right cause shows up in their courtrooms. If you want a court order attempting to repeal Obamacare, or locking in Trump-era immigration policies, or attacking the right to birth control, these guys are happy to deliver.
Ordinarily, the fact that a few trial judges hold extreme views would be unfortunate, but hardly a crisis. According to the Federal Judicial Center, there are 71 federal trial judges in the state of Texas, and federal lawsuits are supposed to be randomly assigned to a local federal judge shortly after they are filed. So, if Texas’s federal courts were functioning properly, judges like Kacsmaryk or Tipton would only occasionally be assigned cases brought by litigants with a political agenda.
But the case assignments process in Texas is not functioning properly. Texas federal courts assign 100 percent of all cases filed in Amarillo to Kacsmaryk. They assign virtually all cases filed in Victoria to Tipton. That means that right-wing litigants can guarantee their lawsuit will be heard by an allied judge simply by filing their suit in one of these two cities.
To be fair, it’s far from clear that this system was set up for nefarious purposes — Texas is a big state with four federal judicial districts that each encompass hundreds of square miles. Assigning all cases filed in Amarillo to a judge who actually sits in Amarillo could save ordinary litigants from traveling hundreds of miles to a court hearing. But the practical impact of this guaranteed assignments system is that right-wing litigants from all over the country travel to places like Amarillo or Victoria to judge-shop.
And then, once these litigants’ hand-selected judge issues a nationwide injunction implementing whatever policy the litigants desired, the case moves up to the Fifth Circuit — where 12 of the court’s 17 active judgeships are held by Republican appointees, and where a good chunk of the judges share the same flexible approach to the law that conservative litigants receive from judges like Tipton or Kacsmaryk.
The result is that right-wing policies implemented by a handful of outlier judges often remain in effect for months or even more than a year before the Supreme Court finally steps in and restores a modicum of sanity.
Last Tuesday, the Justice Department finally decided that something must be done about this problem. It filed a motion in one of Kacsmaryk’s political cases, arguing that he must transfer the case to a location where it will be randomly assigned from a list of more than one judge. The Texas federal courts’ practice of allowing conservative litigants to choose their own judges, the motion argues, “undermines public confidence in the administration of justice.”
Realistically, the likelihood that Kacsmaryk will grant this motion is vanishingly small. Kacsmaryk has spent his brief time on the bench undermining public confidence in the administration of justice with judicial decisions that cannot be squared with the law. But the motion, at the very least, will allow the Justice Department to appeal this issue up the judicial chain — and eventually to the Supreme Court, where the justices could step in if they choose.
But will they step in? At least one conservative justice has acknowledged that the number of nationwide injunctions coming out of lower courts is an issue. Thus far, however, the Supreme Court’s GOP-appointed majority has been quite content to let judges like Kacsmaryk sabotage Biden administration policies for months or longer — although they do sometimes step in after that policy has been suspended for close to a year, and rule that the partisan trial judge who decided the case got it wrong.
At the very least, DOJ’s motion shines a big spotlight on the judge-shopping problem, and it could potentially embarrass the Supreme Court into taking action.
Matthew Kacsmaryk is arguably the worst judge in the United States
As a general rule, lawyers are reluctant to ask a judge to reassign their case to another judge for any reason, no matter how justified, because these sorts of requests tend to antagonize the judge. The Justice Department, in particular, has good reason to shy away from such requests because it is a repeat player in federal litigation. If DOJ angers a particular federal judge, it can be certain that it will have to appear before that judge again.
But Kacsmaryk ruled against the Biden administration so many times, and appeared so hostile to the very idea that the law sometimes calls for outcomes that right-wing activists do not like, that the Justice Department most likely calculated that it has nothing to lose from antagonizing Kacsmaryk.
Matthew Kacsmaryk’s record reads like he’s the villain in a parable about a puritanical witch-hunter. A former lawyer at a Christian right law firm, Kacsmaryk has claimed that being transgender is a “mental disorder,” and that all gay people are “disordered.” He’s railed against a “Sexual Revolution” that began in the 1960s and 1970s, which supposedly claims “that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
Kacsmaryk was the first federal judge to endorse an attack on the right to contraception after the Supreme Court’s decision eliminating the constitutional right to an abortion last June. He attempted to neutralize the federal ban on LGBTQ discrimination by health providers. And he’s widely expected to ban the drug mifepristone, a drug that is used in more than half of all abortions, in a lawsuit brought by the Alliance Defending Freedom, a far-right evangelical group.
The specific case that DOJ asked Kacsmaryk to step away from, Utah v. Walsh, is quite a bit afield from the more prurient issues that define much of Kacsmaryk’s career. It involves a Labor Department regulation governing the duties that investment managers owe to pension funds and similar investments intended to prepare workers for retirement. This regulation was challenged by a bunch of states with Republican leaders, as well as a few energy companies, who claim that it does too much to promote “environmental, social, and governance (‘ESG’) factors in investing” — a pet issue of Federalist Society co-chair Leonard Leo.
But Kacsmaryk has been more than willing to carry water for Republican causes, even in cases that do not raise the sexual issues that he’s written about so ineloquently in the past. Given the wide lineup of Republican luminaries challenging this Labor Department rule, in other words, Kacsmaryk’s record suggests that he will strike down the rule, regardless of whether it is lawful, if he holds on to this case.
So does DOJ have any chance of succeeding in its effort to limit GOP judge-shopping?
The Justice Department’s motion primarily relies on a federal law laying out where suits against federal officials may be brought. Barring circumstances that don’t exist in the Utah case, such suits should be filed in the judicial district where “the plaintiff resides.”
Texas is divided into four federal judicial districts, the Northern, Eastern, Western, and Southern Districts of Texas, and Kascmaryk sits in the Northern District. According to DOJ, however, the only plaintiff that resides anywhere in Texas is the state of Texas itself.
Meanwhile, federal law provides that “an entity with the capacity to sue and be sued . . . shall be deemed to reside . . . only in the judicial district in which it maintains its principal place of business.” DOJ argues that the state of Texas’s “principal place of business” is Austin, the state’s capital, which is located in the Western District of Texas. So this case cannot be heard in Kacsmaryk’s Northern District courtroom.
Additionally, DOJ points to a statute permitting cases to be transferred to a different district “for the convenience of parties and witnesses, in the interest of justice.” Among other things, DOJ argues that “‘the interest[s] of justice’ alone favor transfer” because “the public’s interest in the fair administration of justice would be harmed if a filing with strong indicia of judge shopping were left unchecked.”
Of these two arguments, the latter is far and away the more potent. While the former argument might succeed in moving this one case out of Kacsmaryk’s courtroom, future litigants can likely get around this argument by simply adding a plaintiff to the case who lives in the Northern District of Texas. They may even be able to manufacture such a plaintiff by creating a shell corporation that is nominally headquartered in Amarillo.
The latter argument, by contrast, suggests that judge-shopping is inherently suspect under federal law, and could potentially allow DOJ to attack any effort to shop lawsuits challenging federal policies to partisan judges like Kacsmaryk or Tipton.
But is either argument likely to prevail in a Supreme Court dominated by Republican appointees who, in the past, have been quite content to sit on their hands and let even the most egregious decisions by the most partisan Republican judges remain in effect for months at a time?
The short answer is “maybe.” At least one of the Court’s Republican appointees, Chief Justice John Roberts, has shown some sensitivity toward concerns that the judiciary is behaving in a way that, in DOJ’s words, “undermines public confidence in the administration of justice.” He even complained about judge-shopping in his 2021 annual report, although only in the context of patent litigation.
And Roberts has shown much more capacity for embarrassment than his fellow Republican appointees on the Supreme Court. Though a staunch conservative, Roberts has even broken with his fellow GOP appointees in abortion cases when he thought that anti-abortion litigants asked for rulings that would make the judiciary look too hackish.
Meanwhile, a few justices have complained specifically about how easy it is for litigants to find a single judge who is willing to halt an entire federal program. At a recent oral argument, Justice Elena Kagan, an Obama appointee, told Texas’s solicitor general that she is troubled by how, especially in immigration cases, Texas gets to pick its trial judges.
Similarly, in a 2020 opinion authored when Donald Trump was still president, archconservative Justice Neil Gorsuch wrote persuasively about the need to prevent a single outlier judge from placing an entire federal policy “on ice.” This opinion was also joined by Justice Clarence Thomas, though Thomas and Gorsuch have both been much quieter about the problem of nationwide injunctions since a Democrat moved into the White House.
Perhaps Kagan and Gorsuch can work out a compromise that will eliminate conservative litigants’ power to obtain whatever injunction they want from the likes of Matthew Kacsmaryk, while also placing some limits on litigation tactics that Democrats used to attack Trump-era policies. Or maybe Roberts will be so embarrassed by the increasingly common spectacle created by judges like Kacsmaryk that he will try to find a fifth vote to end this practice among his fellow GOP appointees.
Realistically, DOJ faces a tough fight ahead if it hopes to rein in the worst judges in the federal judiciary. But at the very least, DOJ now appears willing to test whether the justices might be willing to do something about these rogue judges.