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The United States has a Matthew Kacsmaryk problem.
A longtime activist for the Christian right, Kacsmaryk is the Trump-appointed judge who tried earlier this month to ban mifepristone, a drug used in more than half of all abortions in the US, before his decision was blocked by the Supreme Court. Kacsmaryk’s mifepristone decision followed an array of others, on issues ranging from birth control to LGBTQ discrimination to immigration, where he sought to impose his will on the entire nation.
And really, the problem is even larger. Since the start of the Biden administration, right-wing litigants started funneling their lawsuits seeking nationwide rulings to judges they believe will reliably do the bidding of the most extreme elements of the Republican Party, regardless of what the law actually says.
On Wednesday, Sen. Mazie Hirono (D-HI) introduced legislation that seeks to prevent litigants from doing just that. It’s not a perfect bill, and it likely would need to be strengthened before it could stop all far-right litigants from funneling their cases to partisans like Kacsmaryk. It’s also utterly unlikely to be enacted by this Congress. But this bill is a hopeful sign that Democrats may get serious about stopping the worst judges in the country from setting federal policy.
“Judge shopping” isn’t exactly new — Chief Justice John Roberts warned in his 2021 report on the federal judiciary about judge shopping by patent lawyers, many of whom tried to shunt their cases to a particular judge in Waco, Texas — but it is an especially serious problem when litigants use it to bypass the entire political process to change federal policy on a nationwide basis.
Kacsmaryk, and judges like him, are able to shape federal policy so often because of the unusual way Texas’s federal courts assign cases to trial judges. Every federal civil case filed in Amarillo, Texas, is automatically assigned to Kacsmaryk, so Republican litigants who want to all but guarantee a trial court victory simply need to file their complaint in Kacsmaryk’s Amarillo courthouse. Similarly, virtually any lawsuit filed in Victoria, Texas, is assigned to Drew Tipton, another Trump judge whose record is similar to Kacsmaryk’s.
Worse, nearly all decisions handed down by a federal trial judge in Texas appeal to the United States Court of Appeals for the Fifth Circuit, a deeply reactionary court with a history of declaring entire federal agencies unconstitutional.
Hirono’s proposed legislation, the “Stop Judge Shopping Act,” is only two pages long, but it seeks to end some federal courts’ practice of allowing litigants to shop around for reliably partisan judges. If enacted, it would require any lawsuit seeking a nationwide order blocking a federal policy, or seeking an order blocking a federal policy that “extends beyond the parties to the civil action,” to be filed in a federal court in the District of Columbia.
In fairness, the short-term impact of this bill would be to move these lawsuits into a court that currently favors Democrats. At the moment, most of the seats on the United States District Court for the District of Columbia are held by Democratic appointees. And, while Trump did appoint four judges to this court, none have shown the same consistent disregard for the rule of law displayed by Kacsmaryk. This court’s decisions also appeal to the DC Circuit, a center-left court dominated by Obama and Biden appointees.
But the DC federal courts already hear an unusually large number of cases challenging federal policies. As Justice Ketanji Brown Jackson, who served as both a trial and an appellate judge in the DC federal courts, once said, the dockets in these courts are “largely comprised of legal disputes concerning the scope and application of the federal government’s power.” So shifting cases targeting federal policies to DC would also mean that these cases would be heard by judges who have an unusual amount of expertise on the kinds of questions that arise in such cases.
Hirono’s bill should be stronger
At least for the moment, the Stop Judge Shopping Act is an aspirational idea that has virtually no chance of becoming law in the current Congress. The GOP-controlled House is unlikely to pass a bill that diminishes the power of Republican partisans on the federal bench. And even if the bill somehow passed the House, it would still need to clear a 60-vote threshold to pass the Senate, given the filibuster.
But if it were to ever be seriously considered, Congress should tighten down its language to ensure that judges like Kacsmaryk and Tipton do not issue decisions that will still impact millions of Americans.
Currently, the bill applies to lawsuits seeking to block a federal law, regulation, or executive order. It requires all lawsuits that seek a “nationwide injunction” — that is, an order which applies throughout the entire country — or that seek a court order that “extends beyond the parties to the civil act” to be filed in the DC district court.
In theory, this bill should prevent most of the kind of sweeping policymaking that Kacsmaryk and similar judges now engage in fairly regularly. For example, the plaintiffs in Alliance for Hippocratic Medicine v. FDA, the mifepristone case, were doctors who oppose abortions and nonprofit organizations that also oppose abortion. If Hirono’s bill had been law when this case was filed, then Kacsmaryk’s mifepristone ban would have only applied to these plaintiffs, and not to the nation as a whole — effectively rendering the ban toothless because who cares if doctors with strong moral objections to abortion are not allowed to prescribe an abortion drug? It’s not like they were going to write such a prescription in the first place.
But many lawsuits seeking to block a federal policy are filed by state attorneys general, who have the power to bring lawsuits on behalf of their entire state. Indeed, there is a simply astounding array of lawsuits with names like Texas v. Biden or Texas v. United States, where multiple red states join together to ask judges like Kacsmaryk or Tipton to block a federal policy.
As currently written, Hirono’s bill could potentially allow a large bloc of red state attorneys general to file a lawsuit in Kacsmaryk’s courtroom seeking a court order that blocks a federal policy, but only in their states. Hirono’s bill would not allow Kacsmaryk to issue a nationwide injunction against this policy, but he might potentially issue an order that applies in half of the country.
This problem is easy to fix. Hirono’s bill could be changed to also require lawsuits seeking to block a federal policy within one or more states to be filed in the District of Columbia.
And, with that change, the bill could very well shut down the Texas injunction pipeline that gives a simply astonishing amount of power to the most shamelessly ideological judges in America.
Congress, though, would have to be willing to act.
