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Texas judge's Covid mandate ruling exposes federal 'judge-shopping' problem

How savvy plaintiffs across the political spectrum are abusing a “quirk” of the justice system.
Photo illustration: A shopping cart with a gavel over the state map of Texas.
When litigants can hand-pick judges for cases with nationwide impact, the legal system is not dispensing impartial justice.MSNBC / Getty Images

If you’ve heard of any currently sitting federal district judges, you may have heard of Judge Reed O’Connor. Appointed to the Northern District of Texas by President George W. Bush in 2007, O’Connor’s resume includes a 2018 ruling throwing out the entire Affordable Care Act on grounds that were derided as “insanity in print,” and criticized even by conservative opponents of Obamacare. He also issued a 2016 ruling blocking an Obama administration rule requiring public schools to allow transgender students to use bathrooms corresponding with their gender identity and, most recently, issued a ruling on Jan. 3 requiring the Navy to exempt 26 Navy SEALs from its vaccine mandate based upon religious objections — a ruling that failed to cite, let alone distinguish, the most significant Supreme Court decision to the contrary.

If you’ve heard of any currently sitting federal district judges, you may have heard of Judge Reed O’Connor.

As The New York Times noted in December 2018, O’Connor “has become a favorite of Republican leaders in Texas, reliably tossing out Democratic policies they have challenged.” What’s more, the Times explained, “[t]he state’s Republican attorney general appears to strategically file key lawsuits in Judge O’Connor’s jurisdiction, the Northern District of Texas, so that he will hear them.”

But how is it possible that O’Connor himself ends up with all of these high-profile cases? After all, the Northern District of Texas has 12 “active” judges (judges with full caseloads), and another six “senior” judges who also hear cases. Is it just luck of the draw that these high-profile, partisan disputes keep getting randomly assigned to him? The answer is "no" — it’s savvy litigants of all partisan stripes, including the state of Texas, taking advantage of a little-known quirk in federal procedure in which, by filing in the right court, they can literally choose the judge who is going to hear their case.

That “quirk” is a relatively modern phenomenon, but it is increasingly being abused by plaintiffs across the political spectrum. When litigants can hand-pick judges with known ideological tendencies to decide cases with nationwide impact, the legal system is not dispensing impartial justice — it is being co-opted to promote and facilitate partisan political agendas. And with the federal judiciary increasingly becoming more polarized, it is something Congress can and should quickly fix.

Let’s start at the beginning. There are 677 federal district judges assigned to 94 different district courts across the country. Smaller states tend to have only a single district; larger states have as many as four (Oklahoma somehow has three). The number of judges in each district court varies by caseload. By that metric, the biggest district court in the country is the Southern District of New York (which includes Manhattan, the Bronx, Westchester, and five other downstate counties), with 28 active judges; the smallest districts have two each. But that doesn’t tell the whole story. Some district courts are physically enormous. Alaska, for instance, has a single district. And the Western District of Texas (where I live) runs from El Paso to east of Austin and down to the Mexican border — more than 92,000 square miles. Thus, Congress has subdivided most district courts into as many as seven “divisions.” As importantly, it allows the district courts to divvy up the work as they see fit.

Some district courts have carefully divided their caseloads to avoid the possibility of judge-shopping — ensuring that no judge hears more than 10-15 percent of the cases filed in any specific division. But others haven’t. Of the seven divisions in the Western District of Texas, four have exactly one judge hearing every single case. And five of the seven divisions in the Northern District of Texas have one judge hearing all or most cases — including the Wichita Falls division, where O’Connor hears more than 85 percent of civil cases. (The other judges are divided between the two busiest divisions, Dallas and Fort Worth). In other words, by choosing to bring suit in a division with only one or two judges assigned to hear every case, litigants can all but guarantee which judge will hear their case. Nor is this problem limited to Texas; according to a 2018 study, there are at least 81 divisions nationwide, across 30 different district courts, in which one or two judges hear every case.

Of course, a court must still be a proper “venue” for the case — meaning that it must have an interest in the dispute. To limit division shopping, Congress used to require that suits be brought in a division in which at least one defendant resided. But that requirement was repealed in 1988. As a Mississippi district court explained in 2009, “[w]ith the repeal of this statute, the freedom of plaintiffs to file suit in various divisions within a district increased, as did the potential for mischief in this context.”

Now, all that matters is that venue be proper in the district; litigants can pick and choose divisions based upon their own convenience. This has opened the door to rampant judge-shopping, especially in suits against the federal government (which can be sued in any district). For instance, when the state of Texas has sued the Obama and the Biden administrations to challenge federal policies, it has brought suit in, among other places, the Amarillo, Brownsville, Galveston, Sherman, Victoria and Wichita Falls divisions of Texas district courts — but not in Austin, where the state government (including the attorney general’s office) is actually located, and where the two active district judges were both appointed by Democratic presidents.

The problem goes much deeper — and requires a much more structural solution — than a single judge hijacking patent cases.

In his 2021 Year-End Report on the Federal Judiciary, Chief Justice John Roberts singled out the division-shopping problem in the specific context of patent cases, where a disproportionate number of suits are being brought in the (single-judge) Waco division of the U.S. District Court for the Western District of Texas. As professors Jonas Anderson and Paul Gugliuzza have pointed out, because a single judge has structured his own proceedings to attract patent plaintiffs, he has effectively commandeered much of the nation’s patent docket — leaving defendants from California to Connecticut with little ability to avoid conducting major patent disputes in the middle of central Texas.

But the problem goes much deeper — and requires a much more structural solution — than a single judge hijacking patent cases. The assignment of lawsuits to randomly selected judges plays a significant role in ensuring the fairness of civil litigation — to ensure that defendants aren’t left to litigate before judges specifically chosen by the plaintiffs, whether because of their plaintiff-friendly procedural rules; their ideological proclivities; or other characteristics that, presumably, skew the litigation toward the plaintiffs.

Unlike so many other contemporary problems, here, the solution is simple: Although Congress has generally left it up to district courts to decide how to divide their dockets, it can and should require that, at a minimum, no judge be assigned more than one-third of division cases (or one-half of the cases in districts with only two judges). Such a reform won’t eliminate forum-shopping, but it will significantly reduce the far more troubling phenomenon of judge-shopping. And it will make it far harder for individual district judges, like O’Connor, to play such a central role in shaping nationwide policy.