When Matthew Kacsmaryk issued a ruling in April 2023 suspending the Food and Drug Administration’s approval of mifepristone, an abortion pill, Democrats were furious. How could a lone judge in small-town Texas deprive millions of American women of a drug that has been deemed by doctors to be safer than Tylenol?
Mr. Kacsmaryk embodies a pressing problem in America’s judiciary: partisan lawyers pinpointing an ideologically sympathetic judge to hear their case, who then blocks a policy for the entire country.
Forum-shopping is as old as the law itself and was used enthusiastically by Democrats when Donald Trump was president, for example to block funding for his border wall. The practice of “judge-mandering” (a cousin of electoral gerrymandering) takes this to an extreme. It is a potent tool of Republicans seeking to stall President Joe Biden’s agenda.
The longer judge-mandering goes on, the more politicized America’s judiciary will become — with dire consequences for the rule of law. Preliminary injunctions were once reserved for rare cases where plaintiffs would be harmed while litigation proceeded. They are now being used for rapid political retaliation.
Between 2000 and 2023 the share of Americans who said they trusted judges fell from 75% to 49%, according to Gallup, a pollster. Judge-mandering doesn’t help.
The problem is especially harmful to the Supreme Court. When lower-court judges issue incendiary rulings and appeals courts do not temper them, the justices have to weigh in.
Since they tend to hew to the politics of the president who appointed them, filling the docket with culture-wars cases risks making the court appear even more politicized.
Though powerful people on both sides of the political aisle agree that judge-mandering is dangerous, the question of how to stop it is contentious. Unsurprisingly, those who happen to be benefiting at any time are unwilling to lay down their arms.
The Judicial Conference, a policymaking body composed of judges from across the country, tried to tackle judge-mandering in March. It issued a recommendation that all federal district courts should select judges at random for lawsuits seeking to impose or rescind national injunctions.
Yet Republican politicians and some jurists resisted. The Northern District of Texas, where Mr Kacsmaryk sits, said that it would make no such change “at this time.” James Ho, a judge on the Fifth Circuit Court of Appeals in New Orleans, instructed his conservative colleagues not to buckle.
In April Chuck Schumer and Mitch McConnell, the Senate’s majority and minority leaders, each introduced a bill that tackled the problem in different ways. But the chances of either making it successfully through both the Democratic Senate and the Republican House of Representatives are nil. Calling attention to the problem is one thing; fixing it is another.
Fortunately, the Judicial Conference has not yet spent all its ammunition. It is empowered under federal law to prescribe binding rules for the courts, not merely toothless guidelines. Although the agency may have hoped that the worst-offending districts would rein themselves in, the outright hostility to its recommendation shows that it will need to issue mandatory rules.
Judges checking judges could go some way towards restoring the public’s trust. In September Amanda Shanor, a professor at the University of Pennsylvania, sent the rule-making committee of the Judicial Conference a proposal that would impose random judicial assignments. The conference ought to adopt it.
If war is a continuation of politics by other means, so is judge-mandering. But fighting partisan battles with a partisan judiciary should be no one’s idea of justice.
