During the Supreme Court oral argument in United States v. Texas, in which a ruling is expected this spring, Justice Elena Kagan criticized the state of Texas for hand-picking which district judge will hear its cases — a practice known as “judge shopping.”
Texas has consistently used judge shopping over the last two years to manipulate the federal judicial system into obstructing dozens of significant policy initiatives by the Biden administration, particularly immigration policies.
Using this practice, Texas has ensured its federal cases filed in the state will be heard by judges appointed almost exclusively by Republican presidents — and, in most cases, has been able to pick the specific judge. As we argue in an amicus brief filed at the Supreme Court, Texas’s tactics calls into question the state’s standing to sue, damages the public’s faith in the federal judiciary and undermines some of the most fundamental principles of judicial review.
At the heart of United States v. Texas is whether presidents (of both parties) can set immigration enforcement priorities. Even though every president since the mid-1990s has set such priorities, Texas sued to block the Biden administration’s policy. But Texas didn’t file in a federal court near the border. Or in Austin, where the state government is located. Instead, Texas filed in Victoria — 200 miles from the Mexico border, where it was guaranteed the case would be assigned to a single, Trump-appointed district judge. As Justice Kagan pointed out during oral argument, “…you pick your trial court judge. One judge stops a federal immigration policy in its tracks…”
Indeed, this is consistent with Texas’s playbook. Almost without exception, Texas has filed its cases challenging federal policies in courts presided over by Trump-appointed judges. And a majority have been filed in places where they are guaranteed not just a Trump-appointed judge, but a specific Trump-appointed judge.
Immigration is a glaring example: Texas has filed 10 lawsuits challenging Biden on immigration issues. Texas filed nine of those lawsuits in courts where a single, Trump-appointed judge was at the time assigned either 95 or 100 percent of all cases. In the lone exception, Texas filed suit in a three-judge, all-Republican-appointed division.
Of course, Democratic-run states brought numerous suits challenging Trump administration policies in relatively friendly forums. But none followed Texas’s game plan — filing in places where they could literally hand-pick the judge who would hear the case, and nowhere near where the state government is located. The result in many instances is that nationwide immigration policy has been practically taken out of the president’s hands and set instead by a few judges and state’s attorneys.
The case currently before the Supreme Court is one such example. Another is the much-reviled Trump-era policy “Remain in Mexico,” which has left many asylum seekers stranded in Mexico, and which a Trump-appointed Texas judge has twice ruled against the Biden administration’s attempts to end (in the first of which he was reversed by the Supreme Court last June).
Immigration is not the only target — Texas’s numerous lawsuits have also attacked everything from abortion access to environmental protections. So far this year, Texas has filed 10 lawsuits against the Biden administration, and nine of those lawsuits have been assigned to Trump-appointed judges. Once again, none of those cases were filed in Austin or anywhere along the border.
In a governing system of checks and balances, Texas should not be able to manipulate our judicial system to fulfill its political project. Yet, Texas’s scheme is working: Of the 31 lawsuits Texas has filed against Biden policies in Texas courts, a judge appointed by a Democratic president has heard only one, and only after rejecting Texas’s transparent effort to take the case away from her.
The problem is solvable. The district courts can require that challenges to nationwide policies be assigned randomly across the entire district, while Congress can require bringing lawsuits seeking nationwide relief in the District of Columbia, where judges of both parties preside. But the Supreme Court can produce changes even quicker. By ruling against Texas, the Court can make clear it will not tolerate nationwide injunctions from hand-picked judges.
Congress can also solve the problem: Just this week, Sen. Mazie Hirono (D-Hawaii) proposed legislation that would put an end to judge shopping in cases like those Texas has brought, requiring those lawsuits to be filed in the D.C. district court where appointees of both parties preside.
The alternative is nationwide rule by a small group of states and their hand-picked judges, and sometimes just one state whose attorneys general oppose the current president’s policies. The Supreme Court can put an end to this practice in the Texas case. But if it doesn’t, Congress should.
Stephen I. Vladeck is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is author of the “One First” Supreme Court Substack newsletter and the forthcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
Max Wolson is a staff attorney at the National Immigration Law Center, where he works to advance and defend immigrants’ rights through impact litigation. He is an experienced trial and appellate litigator, having served as both a federal and state public defender.