For more than a decade, conservative plaintiffs have been playing a game of justice by filing lawsuits before a hard-right judge who is guaranteed to rule in their favor. Worse, a handful of Republican-appointed judges have made a habit of issuing sweeping decisions that apply nationwide—hobbling the federal government, short-circuiting the democratic process, and transferring inconceivable amounts of power into the hands of a few unelected jurists. The Judicial Conference of the United States, which makes policy for the federal courts, finally struck a blow against this cynical gamesmanship on Tuesday, announcing a new rule to restore the random assignment of cases and close the loophole that lets plaintiffs hand-pick their judges.
On the Slate Plus bonus segment of Saturday’s Amicus, Dahlia Lithwick and Mark Joseph Stern talk about the new policy and how it is being received furiously by the fringe-right faction of the judiciary. Here is a summary of their talk that has been condensed and edited to make it easier to follow.
Dahlia Lithwick: It’s always hard for me to think that anything the Judicial Conference does is a big piece of news, but they did announce a new policy that sets out to curb judge-shopping. It’s the Conference trying to say, ‘Hey, you can’t just go to the casino in Amarillo, Texas, and hire Matthew Kacsmaryk every time you file a case.’ This certainly doesn’t make a difference going backward, but can you tell us about the new policy and whether it will in fact curb litigants shopping for a judge who’s certain to hand them a nationwide injunction?
Mark Joseph Stern: So we don’t actually have the text of the rule yet. We have a press release from the Judicial Conference announcing the policy and its broad strokes. [Update, 5:10 p.m.: The text has been released.] We can glean that under this rule, when somebody files a lawsuit in federal district court that challenges some kind of federal policy—specifically, if it seeks a nationwide injunction or other sweeping relief—it must be randomly assigned to any judge in that district. The lawsuit cannot be pinned on one judge who happens to reside in the division of the district where the plaintiffs strategically filed to prevail in their case.
As you suggested, this is the Matthew Kacsmaryk fix. Kacsmaryk is the guy who sits in a one-judge division in Amarillo, Texas, who will do whatever anti-LGBTQ, anti-abortion, and anti-immigrant plaintiffs ask him to do. The state of Texas goes back into his courthouse over and over again to get sweeping injunctions. The same thing happens with a handful of other Trump-appointed judges in Texas and Louisiana. In patent litigation, there is a problem with judge-shopping: Patent trolls would go to the same judge in Texas for years because they thought they would receive a favorable hearing. That obviously can’t be right.
Chief Justice John Roberts brought up this problem in one of his annual reports, and now he has dropped the hammer. Jeffrey Sutton of the 6th U.S. is a prominent member of the Judicial Conference, where he is the head. Circuit Court of Appeals. Sutton is a very Roberts-like figure who has complained bitterly, and I think correctly, about the scourge of nationwide injunctions. And now they’ve sort of shivved this entire scheme. Their message to these out-of-control district judges seems to be: “It’s over. You can’t keep the grift up. We’re patching this workaround.”
Judge Sutton, talking about this new rule, said: “I actually think the story is about national injunctions. That’s been a new development, really in the last 10 years and maybe the last two or three administrations, where that has become a thing.” I always love when a judge runs out of words and just says “a thing.” But I think it’s important to understand that this policy doesn’t actually stop a single-judge division from issuing a nationwide injunction. It just makes it harder. It sends cases through the spinner to avoid a case going directly to someone like Kacsmaryk. But cases will still end up being randomly assigned to Kacsmaryk.
Yes, it’s alarming that even if a case is randomly assigned to Kacsmaryk, he can still work his mischief. He clearly has no hesitation in doing whatever his client-plaintiffs want him to do in their ongoing collusion. So the ultimate solution has to be an end to this trend of single judges purporting to seize control of the law and make it whatever they want because they got 51 votes in the Senate and they have a God complex and they’ve decided that they’re the King of America.
But nationwide injunctions will remain until either Congress or the Supreme Court steps in to stop it. It seems to me that the three liberal justices are delaying their decision to bring down the hammer here. They might see some value in nationwide injunctions under Republican presidents and policies. But I have become convinced that this stuff has no basis at all in the law or the Constitution.
Look at Kacsmaryk’s decision to remove abortion medication from the shelves of every pharmacy and doctor’s office in all 50 states. That is just king-level arrogance. It is monarchic. It is czarist. It is transferring so much power away from Congress, from the executive, and from the people, into the hands of this one guy in Amarillo.
Just stop and consider, Mark, that federal judges are complaining about this policy on Fox News sound bites. Because that is perfectly normal now.
All the worst people are throwing total hissy fits about this. Especially from the 5th U.S. The Circuit Court of Appeal reviews and upholds many injunctions filed by Kacsmaryk and his disgraceful cohorts. Judge James Ho, a Trump appointee, is complaining about it. Judge Edith Jones is complaining about it. Josh Blackman wrote multiple semi-coherent rants about it. No one of these individuals has been able to offer a single, even mildly plausible defense of the current system. Their only option is to whine and complain about the Judicial Conference allegedly overstepping its bounds and creating policies.
But Congress created the Judicial Conference to make policy for the courts. It is doing what it’s supposed to do. To make a difference in the completely outrageous and lawless judge-shopping system, this is the minimum that could have been done.
Even Republican politicians are getting in on the bashing of the poor Judicial Conference.
Senate Minority Leader Mitch McConnell himself, from the floor of the Senate, delivered a screed against this policy, calling it an “unforced error” and also encouraging district courts to defy the Judicial Conference’s authority and ignore the new policy. McConnell actually sent a letter to the chief judges of every district court in the country, co-signed by GOP senators. John Cornyn and Thom Tillis, encouraging them to disregard the policy, basically saying it’s illegal. So we’re seeing Republicans encouraging courts to defy the Chief Justice of the United States and his ultimate authority as the head of the entire Article III judiciary. Article III may have an intra-war branch between judges who accept the policy and those who don’t.John Roberts is going to receive a lot of hate mail from his colleagues on the lower courts. He is aware that these judges are pushing the most unintelligent legal arguments you can imagine. And I think he, Brett Kavanaugh, and Amy Coney Barrett are tired of having to confront absurd and flimsy legal reasoning worse than what a kindergartener could come up with. It’s time to switch channels.
