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The Fifth Circuit Court of Appeals is part of a judicial pipeline that fast-tracks right-wing rulings to the Supreme Court—and creates endless delays for policies that protect and benefit the public.
Corporate America and conservative activists agree: We live in the United States of Texas, Louisiana & Mississippi.
These states have increasingly played host to major federal lawsuits implicating national policy, primarily in the Northern District of Texas, where certain divisions have just one or two judges, appointed by Republican presidents. The Amarillo division, for example, is only assigned one judge, and so cases there flow unilaterally to ultraconservative Donald Trump appointee and anti-abortion activist Matthew Kacsmaryk. In the Fort Worth division, you get a choice of two judges: George W. Bush appointee Reed O’Connor, or Trump judge Mark Pittman.
All of these judges are reliable champions for a radically conservative vision of the law. When their rulings are appealed, they end up at the just-as-conservative Fifth Circuit, also stacked with partisan ideologues. This has generated a pipeline that fast-tracks right-wing rulings to the Supreme Court—and creates endless delays for policies that protect and benefit the public.
The underlying strategy is known as judge shopping, and it’s key to the right-wing project to politicize and capture the judiciary in order to forcefully enact unpopular policy priorities. According to the public interest group Accountable.US, since January 2017, 63 percent of all U.S. Chamber of Commerce lawsuits challenging federal regulations have been filed at district courts within the Fifth Circuit’s boundaries.
The Fifth Circuit is apparently doubling down even as backlash mounts, essentially litigating against other federal courts and even some of its own circuit colleagues over the right to hear high-stakes, politically charged cases. It’s an unprecedented development that highlights the broader question of what can be done about partisan, rogue judges operating in service to raw power.
ON APRIL 5, REPUBLICAN-APPOINTED FIFTH CIRCUIT JUDGES issued an extraordinary order to Judge Pittman in a lawsuit involving the Consumer Financial Protection Bureau’s effort to cap late fees for credit card issuers. The U.S. Chamber of Commerce and various bank lobbying groups sued to block the cap from taking effect.
Despite his usual ideological approach, Pittman had transferred the Chamber’s case to the federal district court in D.C. a week earlier, explaining that the dispute didn’t have any substantial connections to the Fort Worth area. On the other hand, Pittman explained, the rule was developed in D.C., by agencies and employees stationed there, and most of the plaintiff organizations and their lawyers are also based in D.C.
That ruling implicitly acknowledged broad criticism of judge shopping within the Fifth Circuit.
And Pittman’s ruling seemed technically unassailable: Such a transfer can only be overturned if it’s an abuse of discretion and “patently erroneous”—where the lower court can’t even offer a coherent explanation, in other words. And that basically never happens.
“Everybody has known forever that once a case is transferred out there’s nothing you can do about it,” said David Coale, an appellate lawyer at Lynn Pinker Hurst & Schwegmann in Dallas.
But that didn’t matter to the Fifth Circuit. A majority of the Republican-appointed appellate judges asked Pittman last week to request a retransfer of the case from D.C. back to Texas.
The Fifth Circuit may have stretched even the bounds of its own lawful authority in order to do so, as the dissenting judge effectively conceded. The “new proposition of law created by the majority is incompatible with district court discretion over [its own] docket management and prudent policing of forum shopping,” Judge Stephen Higginson wrote.
Historically, judge shopping has been universally condemned, for the obvious reasons that it erodes impartiality and denigrates the public’s trust in the courts.
Moreover, Judge Don Willett, part of the appellate panel, holds significant amounts of stock in Citigroup, which could benefit from a ruling blocking the late fee cap. (He’s not even the first judge involved in the case found to have credit card company stock holdings.) Willett asked for briefings from both sides of the case on whether he should recuse. Yet the Chamber argued that Willett should not recuse because the case “would have limited effect on the bottom line of issuers”—which makes you wonder why they’re bothering to sue to begin with.
Unfortunately, the Fifth Circuit’s aggressive moves to retain jurisdiction have already succeeded. Judge Amy Berman Jackson, who received the CFPB case from Judge Pittman, terminated the case in the D.C. district court, effectively sending it back to Texas. Judge Jackson did say in her defense that “the Court is not inclined to ‘disregard’ a case on its docket, and it has considerable discretion to supervise its own cases.” But she then used that discretion to simply transfer a case that was rightfully in her court to another, much less appropriate venue, explaining only that the district court in Texas had docketed the case. (If it isn’t obvious, Jackson’s own court had also formally accepted and placed the case on its docket.)
In short, Jackson saved the Fifth Circuit the embarrassment of having a case wrested away—an extremely rare situation that played out in 2022, when a district judge in New Jersey refused to retransfer a case about the legality of instructions for 3D-printed guns back to the ultraconservative circuit.
Incredibly, the Fifth Circuit is embroiled in a number of other ongoing venue fights. A suit filed by Elon Musk’s SpaceX, challenging the constitutionality of the National Labor Relations Board, was transferred to a district court in California by district court judge Rolando Olvera, a rare Obama appointee in Texas. The Fifth Circuit hasn’t let go of the case, even after a three-judge panel initially denied SpaceX’s request to take it back to Texas. A different Texas judge dismissed a case involving the pharmaceutical industry’s challenge of the Inflation Reduction Act’s law allowing Medicare to negotiate drug prices, due to improper venue. But the Fifth Circuit is hearing an appeal to that dismissal, hanging on to the case, with oral arguments scheduled for the end of the month.
Historically, judge shopping has been universally condemned, for the obvious reasons that it erodes impartiality and denigrates the public’s trust in the courts. That consensus includes the Supreme Court; the Biden administration; Congress; the American Bar Association; and virtually every legal scholar that has studied the issue. Chief Justice John Roberts endorsed random assignment of cases in his 2021 annual report on the federal courts.
But now, the judges most implicated in judge shopping are openly embracing the practice, potentially even overstepping their authority in order to carry business groups’ water. Even worse, they have the full support of the Republican Party leadership.
LAST MONTH, REPUBLICAN LEADERS IN CONGRESS PUBLICLY URGED appellate judges around the country to resist adopting rules that would prevent judge shopping, contradicting recent guidelines issued by the Judicial Conference, which governs the federal judiciary. Those guidelines would strengthen procedures for randomly assigning cases of national importance to judges—largely an attempt to address the gamesmanship at the Fifth Circuit.
The move should have been entirely uncontroversial, but it met fierce resistance from Republicans like Sen. Mitch McConnell (R-KY), one of the prime architects of the right-wing takeover of the courts. McConnell and his allies have urged chief judges across the country not to change their case assignment practices. And some of the more strident conservative judges in the country joined in, making highly unusual public statements criticizing the Judicial Conference’s policy, and suggesting they would in fact do nothing to address judge shopping.
“The Republican Party has turned into a pro–judge shopping lobby,” said Paul Gugliuzza, a professor at Temple University Beasley School of Law who has studied the issue. “Until a few weeks ago, the idea that one party shouldn’t get to pick the individual judges that hear their cases was a principle you didn’t even have to defend.”
The cracks in the consensus around judge shopping have been enabled largely by the same Republican politicians who have led their party’s movement to appoint ideologues and conservative partisans, rather than good-faith actors, to the federal courts. Of course, a number of those judges now sit on the U.S. Supreme Court, which shares much of the responsibility here.
The decision to do something about judge shopping is entirely a matter of judicial will.
The Judicial Conference operates as a network of committees, led by the chief judges of all the federal circuit courts and headed by Roberts, who is officially the “Chief Justice of the United States,” not just the Supreme Court. Roberts has sole authority to make appointments to the conference committees and to summon it into session; and very broad authority in deciding what they will consider. The Supreme Court could also take the Chamber’s case and settle these venue issues with a ruling that all courts would be bound to respect.
The decision to do something about judge shopping, in short, is entirely a matter of judicial will—and the buck stops with the chief judges and chief justice.
It’s also important to consider the example set by the highest court in the land.
The Supreme Court itself has been dealing with a legitimacy crisis fueled by apparent partisanship, including moves that raise the very same questions about impartiality that have arisen in the Fifth Circuit.
Yet the justices responded by enacting a toothless code of conduct—the Court’s first-ever—last November; and Newsweek reported on Tuesday that the Court’s conservatives continue to refuse to disclose why they decide to sit out certain cases, even though their liberal colleagues have begun citing the specific reasons for their recusals.
THE POWER DYNAMICS ON DISPLAY SHOW THE DEGREE to which the courts have become just another venue for politics and not an impartial venue for interpreting the law. McConnell and other Republicans ended the long-standing practice of vetting judges’ fitness via the so-called blue-slip policy—which allows home-state senators to block a judge they disfavor—and through ratings from the American Bar Association, focusing instead on their approval by the Federalist Society and the Heritage Foundation.
Those moves have meant that many appointees who would never have been considered before Trump’s presidency are now on the bench, regularly deciding policies of national importance, and enjoying lifetime tenure. Democrats have failed to return serve, meaning that Republican politicians can blue-slip any judge in courts representing their states. This creates a one-way ratchet: Courts like the Fifth Circuit can get more conservative, but never more liberal.
Democrats are keen to fight back against this perversion of the courts, starting with judge shopping. Senate Majority Leader Chuck Schumer (D-NY) recently filed a short bill called the End Judge Shopping Act, which would also mandate random assignment across an entire judicial district, rather than targeted to a particular division.
But McConnell filed his own bill, the Stop Helping Outcome Preferences (SHOP) Act, which claims to be aimed at “preventing” judge shopping, but conveniently leaves out the core of the problem—the practice of flocking to particular courts or judges to file cases of national importance. The election in November could go a long way to determining which vision of judge shopping reform, if any, gets enacted.
Against that backdrop, the breakdown of the consensus on judge shopping, even among judges, is perhaps not so surprising. The Republican Party has made clear that it supports partisanship above all.
