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The Fifth Circuit’s Reign of Error Is in Jeopardy

Right-wingers have been boosting their nuttiest cases by filing them in Texas. But judge-shopping is about to get harder.

Demonstrators blow a shofar and hold a sign saying "abortion pills are murder."
Chip Somodevilla/Getty Images
Demonstrators outside the Supreme Court on April 21, 2023, the day the court decided to halt Judge Kacsmaryk’s suspension of mifepristone’s approval until the case could be considered in full.

If it feels like you read a lot of news stories that begin with “A federal judge in Texas ruled that …,” you aren’t imagining things. A clique of conservative federal judges in the Lone Star State is wielding extraordinary influence over the nation’s laws and policies. The result is a bevy of deeply flawed cases that blow through the usual procedural checkpoints to achieve ideological results.

But patience with these types of cases might be running out. At oral argument this week in FDA v. Alliance for Hippocratic Medicine, the Supreme Court appeared ready to nix a lawsuit filed in Texas to ban mifepristone, the most widely used abortion drug in the country. Justice Neil Gorsuch took issue at one point with the recent spate of cases from the state that have sought far-reaching results on flimsy grounds.

“We’ve had one might call it a rash of universal injunctions or vacaturs,” he told a lawyer for an anti-abortion medical group, referring to nationwide injunctions like the one against the abortion pill at issue. “And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

How these cases come about can vary greatly in the details, but not in the broad strokes. If you are a right-wing legal activist, you have a pretty easy job these days. Say that you wake up one morning, turn on Fox News, and see a report on a Biden administration policy that you don’t like. You want to do something about it. So you call up some friends in Texas who share your perspective on the matter and file a lawsuit in federal court.

Maybe those friends are individuals who would be affected by the policy. Maybe not. Things like standing and injury don’t seem to matter much at this stage of litigation in Texas. You could even ask your friends in the Texas state government to file it for you instead. According to the Texas Tribune, Texas Attorney General Ken Paxton’s office has filed more than two dozen challenges to the Biden immigration policies alone since 2021.

Once filed, you can get the case before one of a handful of conservative federal district court judges in Texas, who will apparently be more inclined than most judges to rule in your favor. Then you take it to the Fifth Circuit Court of Appeals. Sometimes its three-judge panels will uphold the district court ruling outright. Sometimes they’ll limit its scope a little bit. But rarely will they hand out an outright defeat. Then it’s off to the Supreme Court, where you only have to convince five of the six conservative justices that you’re right.

That, in essence, is how the mifepristone litigation came about. Conservative legal activists, led by Alliance Defending Freedom, sued the Food and Drug Administration in federal court a few years ago to overturn the agency’s approval of the drug in 2000. Judge Matthew Kacsmaryk, a Trump appointee, ruled in their favor and issued a nationwide injunction against the FDA. The Fifth Circuit Court of Appeals then overturned Kacsmaryk’s decision with respect to the drug’s original approval, but also struck down later rule changes that made it more accessible.

The Supreme Court will probably jettison the entire thing later this spring on standing grounds. Alliance for Hippocratic Medicine, the anti-abortion doctors’ group that serves as the case’s plaintiff, struggled to articulate anything resembling a legitimate legal injury to them in oral arguments this week. That they came this close to success is a sign that something is seriously broken in the federal courts. Fortunately, there are signs that things might get better soon.

The conservative legal movement’s strategy for building cases among friendly judges predates the Biden administration, the Trump administration, and even roughly half of the current Supreme Court justices. An early vehicle for the Texas strategy was Judge Reed O’Connor, a George W. Bush appointee who serves in the Northern District of Texas. O’Connor is notorious for repeatedly ruling that the Affordable Care Act is unconstitutional despite being overturned on appeal each time. A few years ago, he also deeply misread the court’s Indian law precedents to strike down the Indian Child Welfare Act. (The Supreme Court overturned that one as well.)

It’s worth noting that a certain amount of tactical filing—that is, filing suit in a particular location in order to get it in front of a particular judge—for this kind of litigation is inevitable. When Democratic attorneys general challenged Trump administration policies, they often filed their lawsuits in states like California, Hawaii, New York, and Washington. Senators wield extraordinary informal power over which district court judges get appointed in their respective states. As a result, there tend to be more liberal judges in blue states and more conservative judges in red states, even when one party is in power for an extended period of time.

But the Texas situation goes beyond that. Conservative legal groups brought all of those cases before O’Connor through an unusual quirk of federal court rules in the state. Texas has four federal district courts, divided into north, south, east, and west. Each of those districts has multiple divisions within it; the Northern District, where O’Connor serves, has seven of them. In divisions with multiple judges, cases are assigned at random among them. O’Connor, on the other hand, was the only active judge in the Northern District’s Fort Worth division for many years. A plaintiff could almost always pick their judge by filing their lawsuit in that specific division.

The Supreme Court eventually seemed to grow weary of reviewing and overturning O’Connor’s rulings. In 2018, the state of Texas persuaded O’Connor to strike down the ACA once again on the nonsensical pretext that Congress had rendered the entire law unconstitutional by zeroing out the penalty for not complying with the individual mandate to obtain health insurance. The Supreme Court easily reversed him on standing grounds three years later in an 8–1 decision. Even Justice Clarence Thomas, a frequent critic of the ACA’s constitutionality, thought this one was a bridge too far.

Things also changed on the ground in Texas in recent years. As of 2019, O’Connor is no longer the only judge in the Fort Worth division. Some right-wing litigation has shifted to the Amarillo division, where Judge Matthew Kacsmaryk is the only judge assigned. The Senate narrowly confirmed Kacsmaryk in 2019 after Democrats criticized his past work for a conservative Christian legal group and his remarks on LGBTQ rights and reproductive rights.

Those concerns appear to have been valid: Since taking the bench, Kacsmaryk has overturned the FDA’s approval of the most widely used abortion drug, ordered the Biden administration to reimpose the Trump administration’s “Remain in Mexico” immigration policy, ruled that drag shows aren’t protected by the First Amendment, and more. The Supreme Court reversed his immigration ruling and will likely overturn his FDA ruling; the drag-show ruling is still working its way through the Fifth Circuit Court of Appeals.

Kacsmaryk isn’t the only federal judge in Texas who gets these kinds of cases. For a brief period, Judge Drew Tipton, who was nominated and confirmed by Trump in 2020, was the only federal judge assigned to the Southern District’s Victoria division. The state of Texas filed multiple cases there in the hopes of foiling the Biden administration’s immigration policies. In one of those cases, Texas and Louisiana asked the federal court to override the Biden administration’s immigration enforcement priorities and substitute their own judgment for how federal law should be enforced. Tipton duly ruled in the states’ favor, but the Supreme Court reversed him in an 8–1 decision.

“The States essentially want the federal judiciary to order the executive branch to alter its arrest policy so as to make more arrests,” Justice Brett Kavanaugh wrote for the majority, quoting from precedent. “But this court has long held ‘that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.’ Consistent with that fundamental Article III principle, we conclude that the states lack Article III standing to bring this suit.”

Even federal judges in Texas who aren’t in single-judge divisions have been handing a variety of policy wins to Texas state officials and other conservative legal groups. In February 2023, for example, the state of Texas sued the Justice Department in court to block enforcement of the Pregnant Workers’ Fairness Act. The new federal law required employers to treat pregnant workers with the same level of consideration that workers with disabilities receive under the Americans With Disabilities Act. Employers, in other words, must make “reasonable accommodations” for their condition unless it would cause an “undue hardship.”

One might think that Texas, whose elected leaders have waged an all-out war on abortion access, would also want to make things easier for pregnant workers. One would be wrong. The state argued that Congress’s proxy voting rules, which were enacted during the Covid-19 pandemic, violated the quorum clause of the Constitution and the Pregnant Workers’ Fairness Act that it passed at that time was therefore invalid. Judge James Hendrix, a Trump appointee, ruled in the state’s favor last month and suspended the law’s enforcement in Texas for the time being.

Some of this upheaval is predictable. After all, the Trump era brought about a seismic shift in the Supreme Court’s ideological composition. For more than a decade leading up to 2016, the court had four conservative justices, four liberal justices, and a moderate conservative justice—namely, Anthony Kennedy, who often cast the deciding vote in high-profile cases. (Sandra Day O’Connor played a similar role for the decade before that.) The court was a generally conservative one: It was unsympathetic to criminal defendants, skeptical of federal regulatory power, and favorable toward expansive religious freedom claims.

But the Kennedy court also maintained the public perception that either side could prevail before the justices. The same court that struck down campaign-finance reform laws and gutted the Voting Rights Act of 1965 also upheld the Affordable Care Act multiple times and overturned same-sex marriage bans across the country. It ruled that there was an individual right to bear arms in the Second Amendment but left existing gun restrictions largely intact. It also preserved a tenuous status quo on affirmative action in college admissions and, most famously, refused to overturn Roe v. Wade.

Replacing the moderate Kennedy with Justice Brett Kavanaugh and Ruth Bader Ginsburg, a staunch liberal, with Justice Amy Coney Barrett obliterated that ideological balance of power. Less than two years after Barrett joined the court and cemented a six-justice conservative majority, Roe was dead. Affirmative action in college admissions fell the following year. The Overton window of potential rulings from this group of justices shifted dramatically to the right. And right-wing litigants who hoped to see all sorts of changes in the law adopted Wayne Gretzky’s famous dictum: You miss 100 percent of the shots you don’t take.

The court itself has also encouraged this behavior from time to time. In 2022, for example, Biden issued an executive order that would have wiped away billions of dollars in federal student loan debt. Conservative lawyers and elected officials were initially skeptical that they could find a plaintiff with standing to challenge the law: After all, how could someone whose debt had been forgiven possibly claim that Biden’s order had legally injured them?

Eventually, a coalition of Republican-led states sued on behalf of MOHELA, a student-loan servicer originally created by the Missouri legislature. MOHELA is financially and legally independent; it declined to take part in the litigation or sue on its own behalf, which it had the power to do. Missouri nonetheless claimed it had the right to bring the lawsuit on MOHELA’s behalf. As I noted at the time, the justices’ tangible disdain for Biden’s order as a policy matter came through clearly during oral arguments. They eventually handed down a 6–3 decision in 2023 that the order was invalid, looking past the standing issues to reach the desired outcome.

In a sharp dissent, Justice Elena Kagan castigated the majority for hearing the case in the first place. “They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary [of Education] differs,” she wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. “In giving those states a forum—in adjudicating their complaint—the court forgets its proper role. The court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.”

The MOHELA case wasn’t filed in Texas; it instead came through a federal district court in Nebraska and then the Eighth Circuit Court of Appeals. That makes it the exception that proves the rule: The only reason that it likely wasn’t filed in Texas was because MOHELA doesn’t exist there. The justices even heard a parallel student debt relief case that went through the usual path of the Northern District of Texas and the Fifth Circuit Court of Appeals. They eventually dismissed it in a 9–0 ruling for—you guessed it—lack of standing.

The good news is that the Texas strategy might not last much longer. As I noted last week, the Judicial Conference of the United States, the federal courts’ policymaking body, issued new rules that should provide for greater randomization in case selection and make “judge-shopping” substantially harder. The new policy applies to all 94 federal district courts in the nation, but it will have a disproportionate impact in Texas.

And while the Supreme Court is no less conservative this week than it was last year, the justices may be getting tired of this trend. It is one thing to entrench conservative legal reasoning into the law; it is another to spend the majority of justices’ time reviewing half-baked cases that get fast-tracked by right-wing legal groups with nothing to lose, district court judges who get to make national headlines, and Fifth Circuit panels that aren’t doing enough to weed out the weakest cases. The court has already sent one strong signal to the Fifth Circuit about its ideologically driven practices this month. Its eventual ruling in the mifepristone case could be an even blunter one.