When conservative opponents of the Biden administration’s protections for LGBTQ+ students decided to go to court, they knew exactly which jurisdictions to file their cases. Reuters reported:
Two conservative federal judges in Texas have blocked President Joe Biden’s administration from enforcing new anti-discrimination protections for LGBTQ students, preventing the rule from taking effect in the Republican-led state and a school district represented by a Christian legal rights group.
The injunctions don’t come as much of a surprise, and they represent the first step of a legal process that will continue to unfold.
But it’s worth noting which specific judges blocked the White House’s policy.
One of the jurists was U.S. District Judge Matthew Kacsmaryk, who, as regular readers know, is a Trump-appointed judge in Texas. He’s also earned a reputation as one of the most controversial members of the federal bench.
It was, for example, Kacsmaryk who took it upon himself to suspend the FDA’s approval of mifepristone last year, relying in large part on highly dubious studies — which have since been retracted. (The ruling was ultimately overturned for procedural reasons.)
When a federal judge blocked the Biden administration from enforcing a new rule in Texas that would require firearms dealers to run background checks on buyers at gun shows, that was Kacsmaryk, too.
When a conservative group wanted to challenge energy efficiency standards, they figured it’d be a good idea to file the case in Kacsmaryk’s district. When a conservative group wanted to challenge the administration’s protections for LGBTQ+ students, they did the same thing.
The right’s assumptions are well grounded, as we were reminded again today.
The other judge was U.S. District Judge Reed O’Connor, whose name might also sound familiar.
The week before Christmas in 2018, for example, O’Connor agreed to strike down the entirety of the Affordable Care Act, root and branch. Even many conservatives and ACA critics agreed that the ruling was indefensible, and reactions tended to include words and phrases such as “pretty bananas,” “embarrassingly bad,” and “absurd.”
The New York Times noted soon after that Republicans had a habit of bringing their cases to this specific district court because of their confidence that O’Connor would give them everything they wanted: “He ruled for Texas in 2015 when it challenged an Obama administration measure extending family leave benefits to married same-sex couples. … He also ruled for Texas in 2016, blocking the Obama administration from enforcing guidelines expanding restroom access for transgender students.”
In 2022, the same judge, nominated by George W. Bush, also undermined the Navy’s vaccine requirements, ignoring generations’ worth of precedent. A year later, O’Connor took steps to undermine the Affordable Care Act again.
The tactic goes by different names. I’ve seen it referred to as “forum shopping,” “judge shopping,” “venue shopping,” and “court shopping,” but the phrases all mean the same thing: Instead of simply taking one’s chances in the judiciary, many litigants effectively try to hand-pick ideologically aligned jurists, filing their cases in specific districts in the hopes of guaranteeing success before the process even begins in earnest.
In Trump’s hush-money case, his GOP allies were invested in the idea that prosecutors engaged in court shopping, pursuing an indictment in a court where a conviction was more likely. That never made any sense: Trump’s crimes were committed in the district in which he was charged.
If Republicans are looking for some actual examples of court shopping, I’d refer them to Kacsmaryk’s and O’Connor’s docket.
This post updates our related earlier coverage.
