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 that is Amarillo, Texas, and get 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 simply be glued onto the one judge who happens to sit 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, 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. But judge-shopping is also a problem in patent litigation: Patent trolls spent years going to the same judge in Texas because they knew they’d get a favorable ear. 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. He’s the head of the Judicial Conference, and one of the other most prominent members is Jeffrey Sutton of the 6th U.S. Circuit Court of Appeals. Sutton is a very Roberts-ian 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 if a case is randomly assigned to Kacsmaryk, he can still work his mischief. He clearly has no hesitation to do 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. And I think the three liberal justices are clearly holding off on dropping the hammer here. They might see some value in nationwide injunctions under Republican presidents and Republican 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 purporting to remove medication abortion 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, from the people, into the hands of this one guy in Amarillo.
Just stop and consider, Mark, that we have federal judges making Fox News sound bites complaining about this policy. Because that is perfectly normal now.
All the worst people are throwing total hissy fits about this. Especially from the 5th U.S. Circuit Court of Appeals, which reviews and upholds a lot of injunctions from Kacsmaryk and his disgraceful ilk. (...) All they can do is whine and gripe about the Judicial Conference allegedly overstepping its bounds and making policy.
But Congress created the Judicial Conference to make policy for the courts! It is doing what it’s supposed to do. This is, like, the bare minimum that it could have done to put a dent in this completely outrageous and lawless system of judge-shopping.
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 judge of every district court in the country, co-signed by GOP Sens. John Cornyn and Thom Tillis, encouraging them to disregard the policy, basically saying it’s illegal. So we’re seeing Republicans telling courts to defy the chief justice of the United States and his ultimate authority as head of the entire Article III judiciary. We might see an intra-war branch within Article III between judges who accept the policy and judges who don’t.
by Dahlia Lithwick and Mark Joseph Stern, Yahoo News | Read more:
Image: John Roberts, uncredited
