The Fifth Circuit’s Reign of Error Is in Jeopardy

The conservative legal movement’s strategy for building cases among friendly judges predates the Biden administration, the Trump administration, and even roughly half of the current Supreme Court justices. An early vehicle for the Texas strategy was Judge Reed O’Connor, a George W. Bush appointee who serves in the Northern District of Texas. O’Connor is notorious for repeatedly ruling that the Affordable Care Act is unconstitutional despite being overturned on appeal each time. A few years ago, he also deeply misread the court’s Indian law precedents to strike down the Indian Child Welfare Act. (The Supreme Court overturned that one as well.)

It’s worth noting that a certain amount of tactical filing—that is, filing suit in a particular location in order to get it in front of a particular judge—for this kind of litigation is inevitable. When Democratic attorneys general challenged Trump administration policies, they often filed their lawsuits in states like California, Hawaii, New York, and Washington. Senators wield extraordinary informal power over which district court judges get appointed in their respective states. As a result, there tend to be more liberal judges in blue states and more conservative judges in red states, even when one party is in power for an extended period of time.

But the Texas situation goes beyond that. Conservative legal groups brought all of those cases before O’Connor through an unusual quirk of federal court rules in the state. Texas has four federal district courts, divided into north, south, east, and west. Each of those districts has multiple divisions within it; the Northern District, where O’Connor serves, has seven of them. In divisions with multiple judges, cases are assigned at random among them. O’Connor, on the other hand, was the only active judge in the Northern District’s Fort Worth division for many years. A plaintiff could almost always pick their judge by filing their lawsuit in that specific division.