America’s Judicial Divisions

This article appears as part of a special issue of The American Prospect magazine on state policy divergence and aggression. Subscribe here.

Mark Lee Dickson, one of the most quietly influential figures in America’s anti-abortion movement, gives off a slight air of resignation these days when he talks about the decades-long campaign to ban abortion nationwide.

Dickson has been on the front lines of the country’s so-called culture war over abortion, and the political fights and legal battles too, for years. Despite many recent wins, including the crowning achievement of overturning Roe v. Wade in 2022, he is apparently beginning to grow frustrated with the ideological—or perhaps jurisdictional—limits of the movement he has helped lead.

In June, lawmakers in Amarillo, a staunchly conservative, deep-red city in the deep-red Texas Panhandle, rejected a proposal for a so-called “abortion travel ban,” one of the pieces of model legislation that Dickson, who uses the less euphemistic “abortion trafficking ban,” has advocated for. The law would have teamed up with an existing state statute that allows Texans to sue people for “aiding and abetting” abortion. In Amarillo, it would have aimed to ban the use of city roads and highways to seek an out-of-state abortion.

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“For that to be happening in a conservative city, with conservative leadership, it is quite concerning,” Dickson tells me. Even Republican presidential candidate Donald Trump has capitulated, once again, on reproductive health care, announcing in August that he is in favor of in vitro fertilization. The procedure that helps families conceive also destroys some unused embryos, which hardcore anti-abortion activists equate with taking a life. “It does concern me that we’re seeing some in the Republican Party step away from a strong position on protecting the life of the unborn at conception,” Dickson says.

But the other distinct feeling you get when speaking with Dickson about his cause is a steely, unshaken resolve. After all, in his view, banning abortion altogether is about morality and saving lives, quite literally and simply.

“This is a battle we’re going to continue to fight at every level of government. It’s not something we’ll give up on,” Dickson said. “We’ve seen victories in some places, like Texas, Oklahoma, Arkansas, but other places that are controlled by liberal Democrats … we have to do something about that.”

THE ABORTION BATTLEGROUNDS HAVE SHIFTED in recent years, especially since Roe v. Wade was overturned. The Supreme Court’s conservative justices described their Dobbs v. Jackson Women’s Health ruling, which revoked reproductive health care rights, as a decision to “return the issue of abortion to the people,” and, alternatively, to “their elected representatives” and “to the States.” Former President Trump has also made it a standard talking point to say that he appointed justices who rightfully returned the matter to the states.

Yet, although the fight is often initiated by officials and the states, it is now squarely in the hands of the courts, and it’s being decided by politically appointed judges with lifetime tenure, rather than sorted out through public debate and legislative processes.

That doesn’t apply only to the abortion issue. The same is true about many of our current and most heated political disagreements, including debates over minority civil rights, religious rights, gun safety, government aid, and more.

Red and blue states have been pulling further and further apart on policy as a general matter, enacting radically divergent laws and regulations. Republican-controlled states are generally making it as difficult as possible for their citizens to vote, for example—the most basic issue of democratic governance—while Democratic-led states are working to do the opposite. That kind of massive discordance in the laws between states gives enough cause for concern, in and of itself. Yet we’re also seeing red states in particular relying on the courts more and more to reach beyond their borders to constrain or coerce citizens of other states, and make policy nationally.

Red states in particular rely on courts more and more to constrain or coerce citizens of other states, and make policy nationally.

That rising and aggressive trend is a result of the stunning successes that the conservative legal movement has achieved in its long-running mission to stack the federal courts with nakedly partisan conservative judges, driven by Republicans’ eager willingness to break the norms and rules of judicial appointment as well as legal decision-making, especially since former President Trump’s administration. Those dynamics have ushered in an era of unprecedented legal gamesmanship and policy chaos that is straining the coherence of our federal system, and is slowly but surely pushing the judiciary and the country toward a constitutional crisis.

The state of Texas is exemplary in this respect. As of last March, Texas alone had filed at least 29 federal court challenges seeking to block or change national policies implemented by the Biden administration during his term. In 2020, the state filed a lawsuit seeking to challenge and throw out the ballots of all voters in Michigan, Wisconsin, Pennsylvania, and Georgia—states that Biden won—on the basis of Trump’s lie that there had been fraud in the elections.

It is already foreseeable that there might be interstate legal battles over whether people can be extradited and prosecuted in one state for “aiding and abetting” an abortion, even if the procedure took place in another state where it’s legal. Texas, again, currently has a law on the books that hypothetically allows a Wisconsinite to sue a Californian for abetting a Texan’s abortion, as The New York Times put it in 2021. Similarly, we could see “clawback” lawsuits, or dueling litigation for damages in different states, for helping someone get gender-affirming care or for interfering with that care.

Americans generally have the right to sue for race discrimination under the Voting Rights Act—but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, or South Dakota. A coalition of Republican officials have successfully sued to revoke those rights from the residents of those states, even though officials in Minnesota, at least, were opposed. To put it differently, Minnesotans didn’t vote on the matter, nor did their elected officials in the statehouse or in Congress take any actions, but a coalition of attorneys general in neighboring states have nonetheless imposed these anti-voting policies on them.

Similarly, the EPA can no longer enforce certain key civil rights protections in Louisiana, where “Cancer Alley” is located, and at least 23 other red states petitioned the agency in April “to demand” that it cease enforcement within their borders too. That means that question will almost inevitably end up in the courts, and will touch states that might be in favor of federal government action to prevent environmental harms and discrimination.

Besides the interstate aggression, we’re even beginning to see these dynamics pit court against court.

This past May, judges within the U.S. Court of Appeals for the Fifth Circuit, the strikingly partisan court that covers Louisiana, Mississippi, and Texas, were effectively engaged in unprecedented litigation against co-equal federal courts in Washington, D.C., over the right to hear a high-stakes case about limits on the late fees credit card companies can charge—even though the rule was written in D.C., most of the organizations that sued were based in D.C., and most of the lawyers on the case were also based in D.C.

We’re near enough to the brink of this coming crisis that the government is beginning to act.

The Justice Department and its newly established Reproductive Rights Task Force stepped into a lawsuit challenging Alabama’s abortion travel ban in August, and laid out the matter plainly. The federal government was intervening, the DOJ said, because it has an obligation to defend “sovereign interests of the United States, including preserving the proper functioning of the federal system and ensuring that one State does not improperly intrude into the affairs of other States.”

That’s a task that will grow increasingly difficult, and there are no easy answers in sight.

THE RISE OF INTERSTATE AGGRESSION IN THE COURTS can be attributed to a number of complex factors. But one of the simplest contributors is partisan polarization and an increasingly hostile approach to politics, mostly on the Republican side.

The legal scholar Katherine Florey observed in a 2023 paper on the “new landscape of state extraterritoriality” that historically, concerns about states potentially extending the reach of their policymaking power revolved around economic protectionism and other actions to favor a state’s own citizens. That would include laws mandating prices for products that are no higher than in other states, or a law giving in-state claimants advantages when seeking insurance payouts.

But concerns today tend to revolve around state laws that convey no financial benefit on their residents, but instead express, safeguard, or seek to advance deeply held values, Florey wrote. Those kinds of acts are more likely to result in further clashes and conflict, simply because advocates are often motivated by moral values and political beliefs that cannot tolerate people choosing different policies—whether democratically, via their own local ballot, or through traveling to another state.

One salient example Florey uses is the history of no-fault divorce. States adopted very different rules on divorce, and people gradually began seeking divorces in more liberal jurisdictions to get the result they preferred. That prompted thorny questions about legal reciprocity and the status of the marriage when those people entered a more conservative state.

“There was just a lot of legal chaos for decades, and it didn’t really end until no-fault divorce became popular and adopted by all 50 states,” Florey told me.

Trump nominated more people rated “not qualified” than any other president since the ABA began collecting data in 1989.

Dickson addressed this issue bluntly when I asked how he and his allies should respond to the fact that most Americans, including in red states, seem to prefer broader access to abortion than under most Republican-backed proposals, and certainly broader than under the kind of no-exemption policy Dickson himself favors. Half of all Republican women voters think abortion should be legal in all or most cases, with a larger share—56 percent—among Republican women voters aged 18-49, according to a July poll by the Kaiser Family Foundation. His answer reveals an unwillingness to allow those who don’t share his values to live according to their own.

“We can’t have anti-abortion states and abortion access states,” Dickson replies. “That wouldn’t be a problem if unborn children were not human beings, but unborn children are human.”

In Amarillo, Dickson and his allies’ efforts went much further than the now-failed lobbying effort to get an “abortion trafficking” ban enacted. His attorney and partner Jonathan Mitchell, a former Texas solicitor general, urged the mayor to enact the ordinance explicitly so that they could get into federal court, in order to obtain a ruling that would have banned the abortion medication mifepristone nationwide. Mitchell believed that passing the local ordinance would give the city a right to intervene in a still-pending lawsuit over the availability of the drug. When those efforts also failed, Dickson pivoted to a campaign to put the question of an abortion travel ban on the ballot; Amarillo residents will vote directly on the question this coming November. Voters may very well agree with their city council, and reject the proposed ordinance. But that won’t settle the matter for people like Dickson and many other anti-abortion advocates.

OUR ERA OF INTERSTATE AGGRESSION IS ALSO A RESULT of conservatives’ willingness to exploit structural and procedural vulnerabilities in the judiciary, and to break norms and rules, starting in the appointment process.

Even though the president appoints and the U.S. Senate confirms federal judges for both blue and red states, Republicans’ unduly partisan approach has led to a similarly partisan judiciary.

Historically, under the blue-slip process, Judiciary Committee chairs wouldn’t move federal court nominees unless both home-state senators gave their approval, giving them a powerful veto tool. They made their decision by sending a blue slip of paper to the chair.

The process isn’t required by the Constitution, but it has become customary, a self-imposed rule or norm. But Republican senators abandoned that practice for appeals court judges during the Trump administration, and Trump went on to nominate a spate of unusually extreme, unqualified, and partisan judges, causing a swing to the extreme right on the appeals courts, even in blue states.

Generally speaking, contemporary Democratic administrations consult with the American Bar Association, which rates candidates based largely on legal experience, before making judicial nominations. Republicans, on the other hand, do not, and generally leave vetting to the partisan, right-wing Federalist Society. During his four years in office, Trump nominated more people rated “not qualified” than any other president since the ABA began collecting data in 1989, while the last Democratic nominee to be rated “not qualified” was selected in 1994, under President Bill Clinton, according to an analysis by Ballotpedia.

At one point, three of Trump’s nominees withdrew in just ten days, including a ghost hunter who failed to disclose blog posts supporting the early Ku Klux Klan, and a lawyer who was unable to answer a single question about basic lawyering during his confirmation hearing. To put it plainly, Trump repeatedly nominated and the Senate repeatedly confirmed nominees during his term whose names would have never reached anywhere near the Oval Office in previous administrations, even under other Republican presidents.

Democrats also did away with the blue slip for appeals courts under Biden, but they have not filled red-state appeals court seats with the same disregard for home-state interests—or basic qualifications. Republicans have confirmed 17 appellate judges over the objection of a home-state senator, while Democrats have confirmed three over objection, CNN reported in August. And district court judges continue to be held to the blue-slip standard.

What this means is that plaintiffs can judge-shop, or handpick preferred judges in high-stakes cases.

Federal court districts are created by federal law, but the allocation of cases within those districts is up to the judges who sit on those courts, much like questions of discipline and other aspects of judicial governance. Ultimately, the buck stops at the Judicial Conference, the Supreme Court, and with Chief Justice John Roberts.

Some larger states subdivide their districts into divisions by geography, to make travel to the courthouse more convenient. As a general matter, case assignment is randomized via a lottery system, but there are 35 divisions around the country that have just one or two judges—concentrated in Texas in particular—and the rules make it easy to essentially handpick a preferred judge in those divisions.

In the post-Trump era, those judges are increasingly likely to abuse the normal rules of legal decision-making, especially the “universal injunction” remedy—the power to bar the federal government from enforcing a policy or law against the parties that brought the lawsuit, as well as all other people and entities. Together, those dynamics have created opportunities not only to judge-shop, but to effectively engage in results-shopping as well, enabling judges in a few conservative states to engage in national policymaking.

Coalitions of Republican states have used strategic litigation in red states to successfully frustrate or block a litany of national policies that their elected officials oppose, including discharging student loan debt for millions of Americans, and much of President Joe Biden’s immigration agenda. In just the past few months, Republican-led states filed lawsuits to block Biden’s second student debt relief plan, a new executive order that enlists federal agencies in helping Americans register to vote, a new Department of Labor rule requiring investment advisers to act in the best interest of their clients, and a new program giving legal protections to undocumented spouses and children of U.S. citizens, just to name a few.

Fourteen of Texas’s 29 challenges to Biden administration policies were filed in jurisdictions where the assignment to a specific judge is guaranteed, including six in the single-judge division of Amarillo—even though there’s a federal courthouse in Austin about a five-minute drive from Attorney General Ken Paxton’s office.

Those six cases were guaranteed to be heard by Judge Matthew Kacsmaryk, a former anti-abortion activist and ultraconservative Trump appointee whose rulings in major cases unfailingly enact conservative policies.

In fact, lawyers in Paxton’s office have effectively admitted on the record that they are repeat customers of particular divisions because they want their cases heard by Trump appointees like Kacsmaryk and Judge Drew Tipton of the Southern District of Texas, Corpus Christi Division (where there are four judges).

The same goes for a business trade group representing hedge funds and private equity firms, which has literally set up shop in Texas to avail itself of those districts’ friendly judges. (That trade group recently won a case weakening the Securities and Exchange Commission’s ability to regulate hedge funds.)

Some of those courts have been criticized by litigants and commentators for taking up cases even when the connection to Texas is dubious at best. In response, the Northern District of Texas—which includes Amarillo’s single-judge division and is likely the most partisan district in the country—announced in June that it would delay all orders to transfer cases out of the Fifth Circuit’s jurisdiction, unless agreed to by all parties in the case.

Finding solutions to this impending judicial crisis might require looking outside the courts.

If you take this one level up, where the rulings from Judges Kacsmaryk, Tipton, and other Texas jurists are heard, you get to the ultraconservative Fifth Circuit. Of the 17 active judgeships on the Fifth Circuit, 12 were appointed by Republican presidents, and the other five from Democrats were mostly appointed under the old blue-slip rules.

Since 2017, approximately 63 percent of all U.S. Chamber of Commerce lawsuits challenging federal regulations have been filed at the Fifth Circuit. Republican-led states often intervene in those cases on behalf of corporations and against federal regulation.

The federal agencies have taken losses in 22 out of 26 such cases since July, after the Supreme Court transferred much of the agencies’ regulatory power over to the courts. And Republican-appointed judges decided virtually all of those rulings against agencies, according to an analysis in September by Bloomberg Law. Most of those decisions, the analysis stated, “are in cases involving Republican-led states, conservative advocacy organizations, or business groups that sought friendly forums to challenge Biden administration rules.”

The asymmetry is important here: Judge-shopping and results-shopping is a distinctly Republican phenomenon. Democratic and Republican attorneys general and other plaintiffs have long engaged in what can be described as forum-shopping: directing federal litigation to a particular district to create higher odds of getting either Democratic or Republican appointees assigned to the case. But only conservatives are regularly steering their cases to single-judge divisions outside of the attorney general’s home courthouse, as the legal scholar Stephen Vladeck has pointed out, and to particular judges whose priors, biases, and values are well known.

INTERSTATE AGGRESSION IS FURTHER COMPOUNDED by judges’ willingness to abuse procedural rules and norms of decision-making.

Nationwide injunctions, which had not been used by judges until the 1960s, are becoming more common, and they are more commonly used for partisan ends, according to analysis in April by the Harvard Law Review.

Between 2001 and 2016, slightly more than half of nationwide injunctions against Bush- and Obama-era policies came from judges appointed by the opposite party from the administration whose actions were blocked. During Trump’s presidency, those numbers shot up to 92 percent; and every single nationwide injunction blocking President Biden’s policies has been issued by a Republican-appointed judge, often in the Fifth Circuit.

The Harvard Law analysis pointed out that the spike in the “use of nationwide injunctions during the Trump Administration could reflect judicial responsiveness to the unprecedented degree to which President Trump tested the limits of presidential power.”

What’s been happening in the courts since Trump’s election and his flurry of judicial appointments, though, is more concerning. Despite some complexity, the most important factor here seems to be that there are simply many more judges in the post-Trump era who are willing to break procedural rules and norms, and engage in unprincipled legal reasoning in order to enact conservative policy goals, starting at the very top.

To that end, and by virtue of their position as the heads of the federal judiciary, the Supreme Court’s conservative justices are perhaps the worst offenders.

AS A GENERAL MATTER, THE SUPREME COURT invited a flood of foreseeable litigation when it opened the door to a patchwork of anti-abortion statutes in Dobbs, including red-state laws like in Texas that seek to exert power extraterritorially. The same goes for the Court’s decision in New York State Rifle & Pistol Association v. Bruen, which delivered a historic expansion of individual rights to guns, and spurred numerous lawsuits by Republican states to block federal gun regulations, including cases that inevitably make it easier to circumvent gun control laws in blue states.

More importantly, the Court’s Republican-appointed majority has grown increasingly partisan, and now routinely defies its own procedural rules and the basic, fundamental principles of legal reasoning, especially in cases with national political implications.

Legal scholars William Baude and Stephen Vladeck have popularized the concept of the “shadow docket,” and laid out how the Court increasingly relies on its emergency procedures to decide questions of national importance, from capital punishment to immigration and census administration—almost always along partisan lines and almost never during an actual emergency situation.

Research has since shown that the Court’s abuse of those procedures has served partisan aims. The Trump administration asked the Court for emergency relief an unprecedented 41 times, and received it in an equally unprecedented 28 cases, for example. By contrast, there were just eight such requests, and four wins, during all 16 years of the Bush and Obama administrations, according to research by Vladeck. All of the liberal justices and even conservative Chief Justice John Roberts have criticized their colleagues for these practices.

The Court is also agreeing to hear cases via a procedure that bypasses courts of appeals and takes up cases directly from the lower district courts more often than ever before, according to new research published in March by Vladeck. The Court did not take up even one case via the “certiorari before judgment” process between August 2004 and February 2019. But it granted at least 21 petitions for accelerated appeals since then, according to Vladeck’s research.

And the justices more regularly decide the substantive merits of a case when they’re actually supposed to be considering only preliminary, procedural matters. Just one ruling relied on those truncated processes during the Court’s 2017 and 2018 October terms, but there were six in 2020 and eight in 2021, according to Vladeck. Virtually all of them came in the biggest and most politically consequential cases, including Republican challenges to student loan forgiveness and the Biden administration’s immigration policies, an affirmative action case, and a case challenging racial gerrymandering in Alabama.

Finally, a striking number of the Court’s recent rulings have left myriad avenues for legal gamesmanship. The court has made a mockery of stare decisis, the bedrock legal principle that judges generally have to abide by long-standing precedents, in Dobbs, in Bruen, and in Loper Bright Enterprises v. Raimondo, which shifted power to interpret regulations from agencies to the courts. And the justices have invented out of whole cloth a number of interpretive rules that offer no real guidance to lower-court judges, and seem to only increase the judiciary’s—and ultimately the Supreme Court’s—discretion and power.

In short, the Supreme Court’s current conservative majority has set an awful example for the lower courts. In his March paper, Vladeck observed that “the more that the Court acts in defiance of the formal constraints” on its processes and decision-making, “the more that its behavior encourages, if not affirmatively invites, similar behavior by courts of appeals when faced with similar postures … In a world in which the justices were more aggressively enforcing the appropriate standards and norms of appellate review, it would be a lot easier to demand the same from their colleagues below.”

Today, conservative litigants seeking to overturn Democratic policies can take a familiar path, from a district court in Texas, to the Fifth Circuit, to the Supreme Court, and know that they will almost certainly be heard by judges who share their partisan zeal at every step of the way. That gives red-state officials and their allies the ability to enact their values as national policy, without ever winning a national majority of the popular vote, and without ever holding Congress or the presidency.

BY NOW, THERE HAS BEEN NEAR-UNIVERSAL CONDEMNATION of judge-shopping and support for randomized case assignment, including from members of Congress, the American Bar Association, and even some of the Supreme Court justices themselves.

The Judicial Conference in March issued advisory guidelines encouraging random assignment, though they weren’t binding. And Democrats have introduced legislation to require randomized assignment.

Yet the loudest voices against that commonsense reform are the primary offenders: judges in the Fifth Circuit, and some of the congressional Republicans who advocated for their confirmation, including Sen. Mitch McConnell (R-KY), a central architect of Republicans’ judicial takeover. The Northern District of Texas has already rejected the suggested case assignment reforms.

Legislative fixes run into the problem of a deeply polarized, generally nonfunctional Congress, as well as the fact that the Supreme Court itself—which deserves significant blame here—will still have power to review congressional legislation and executive action, including moves to govern the Supreme Court.

Indeed, finding solutions to this impending judicial crisis might require looking entirely outside of the courts.

In her research, Florey has found that some long-festering conflicts between state laws have simply remained unresolved, and continue to cause (minor) friction between the states. She told me that the current degree of division among Americans leaves her unsure whether court reform could even address the problems of interstate aggression.

“Really, the only fundamental way out that I see is not law itself, but a greater national consensus,” Florey said. “Sometimes, these legal clashes are resolved by everyone moving in one direction, although it seems hard at the moment to foresee that happening in the area of abortion.”

As it happens, Americans appear to be pulling further apart even on the once-settled issue of no-fault divorce. Conservative lawmakers in states like Oklahoma, Texas, and Louisiana are calling for an end to no-fault divorce, and even Republican vice-presidential candidate JD Vance has spoken out against it.

It’s unclear whether a majority of Americans are still in favor of no-fault divorce. At any rate, we can be certain that the issue will ultimately be decided in court.