Why Texas judges have so much power right now

Why is Texas so good at changing policy for the whole US?

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In April 2021, Texas sued the US government over immigration policy. But they didn’t sue in Texas’s state capital; or in Washington, DC; or in any of the five federal courthouses along Texas’s border with Mexico. They filed the suit in a small Texas city called Victoria, far from any important government officials or immigration centers. And they did it there because they knew that if they did, a judge named Drew Tipton would be assigned to their case.

In the time since Joe Biden has become president, Texas has sued the federal government 31 times. That’s a lot, but what’s more striking is that eight of those lawsuits have been heard by Judge Tipton specifically. The reason that’s weird is that, normally, judges are supposed to be assigned to cases randomly. But in Texas, you can choose your judge. It’s called “judge shopping” and it’s made Texas judges some of the most powerful in the country.

It’s not just the state of Texas filing suits. In 2022 a private group called the Alliance For Hippocratic Medicine filed a suit demanding that the FDA take mifepristone, a widely used abortion medication approved in 2000, off the market. And they filed the suit in Amarillo, Texas, where the judge Matthew Kacsmaryk hears 100 percent of the cases. Kacsmaryk had previously been a lawyer for right-wing causes before he was a judge, and he ruled accordingly, ordering that the FDA ban mifepristone throughout the US.

In the mifepristone case, the Supreme Court stepped in and paused the decision, but the fact that it got so close to being banned shows how empowered Texas federal judges are by the rules of Texas district courts. These judges, most of whom were appointed by Donald Trump, are playing a huge role in shaping national policy, and they’ve turned Texas into a powerful weapon against the federal government.

Sources/further reading:

The Federal Judicial Center keeps a phenomenal and really easy-to-use database of all US federal judges: https://www.fjc.gov/history/judges/search/advanced-search

In 2022 Steve Vladeck filed an amicus brief to the Supreme Court that outlines the issue of judge shopping really clearly: https://www.supremecourt.gov/DocketPDF/22/22A17/230032/20220713161446965_22A17%20tsac%20Stephen%20I.%20Vladeck.pdf

This 2018 article by Alex Botoman dives into the issue of random case assignment and was an invaluable resource in understanding how federal district courts around the country assign cases, with or without the use of divisions: https://hrlr.law.columbia.edu/files/2018/07/AlexBotomanDivisionalJudg.pdf

Steve also writes a Substack about law and the Supreme Court, and in March wrote a great post about single-judge divisions: https://stevevladeck.substack.com/p/18-shopping-for-judges

And Steve's book about the Supreme Court comes out on May 16, 2023: https://www.hachettebookgroup.com/titles/stephen-vladeck/the-shadow-docket/9781541602632/?lens=basic-books

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