Opinion: Conservatives game the system to drag Supreme Court further into culture war

Editor’s Note: Steve Vladeck is a CNN legal analyst and a professor at the University of Texas School of Law. He is the author of the “One First” Supreme Court newsletter. The opinions expressed in this commentary are his own. View more opinion at CNN.

It would be understandable if the Supreme Court justices were experiencing a strange sense of déjà vu during last Tuesday’s oral argument in a case seeking to block nationwide access to mifepristone — one of the two drugs used in the most common (and safest) way to abort early-stage pregnancies.

For the second time in an eight-day period, the justices were hearing a case smack dab in the middle of the culture wars — and one for which it wasn’t at all clear why the suit should’ve been allowed to proceed in the first place.

Just as in Murthy v. Missouri, a challenge heard by the court on March 18 filed by two red states and three anti-vaccine activists to Biden administration efforts to combat Covid 19 disinformation and misinformation on social media platforms, the justices spent much of the argument in the mifepristone case on Tuesday asking whether the plaintiffs have the “standing” required to proceed with their suit — that is, whether they could show any connection between the federal government conduct they were challenging and harms they’ve allegedly suffered.

The similarities don’t stop there. Both cases were filed in federal district courts in which the plaintiffs could literally hand-pick the specific federal judge who would be assigned to hear the dispute.

The social media case was filed in the Monroe Division of the US District Court for the Western District of Louisiana, where it had a 100% chance of being assigned to Judge Terry Doughty, who was appointed by President Donald Trump; the mifepristone case was filed in the Amarillo Division of the US District Court for the Northern District of Texas, where it had a 100% chance of being assigned to Judge Matthew Kacsmaryk, also a Trump appointee. In both cases, the judges were the only ones handling cases in those districts.

Both district courts held that these plaintiffs did have standing, and issued nationwide relief against the challenged federal actions — revoking the FDA’s approvals of mifepristone, and barring a wide array of federal officials from communicating with social media companies. And in both cases, the same court of appeals — the New Orleans-based US Court of Appeals for the Fifth Circuit — affirmed significant parts of those rulings.

Now, in both cases, Supreme Court justices from across the ideological spectrum are expressing puzzlement over the lower courts’ conclusions that these plaintiffs have standing — puzzlement that might better be directed at the judges who allowed these cases to make it this far.

Although the social media and mifepristone cases are especially visible examples of this phenomenon, they are hardly alone: Right-wing litigants have regularly taken advantage of their ability to handpick ideologically sympathetic judges by filing a disproportionate percentage of lawsuits challenging the Biden administration in geographically remote district courts within the Fifth Circuit.

By itself, the state of Texas has filed 37 such suits — none of which have been filed where the seat of Texas government is actually located, i.e., Austin, presumably because one of the two federal district judges who hears cases filed there is a Democratic appointee. And the Supreme Court’s docket has increasingly skewed toward this part of the country.

This term alone, the justices are set to hear 11 cases just from the Fifth Circuit. Only the Ninth Circuit, which covers the entire West Coast and hears almost twice as many cases as the Fifth, is responsible for more of the justices’ work — and only two more cases, at that.

Among those 11 cases are Fifth Circuit rulings: invalidating how Congress appropriates funds for the Consumer Financial Protection Bureau (and, by its logic, a host of other agencies); striking down the federal statute that bans those subject to domestic violence-related restraining orders from possessing firearms; and kneecapping the Securities and Exchange Commission’s ability to enforce securities laws through administrative proceedings.

More than that, these ideologically charged cases from the Fifth Circuit are also putting increasing pressure on the justices even before they hear the appeals — with whoever is on the short side (usually, the Biden administration) regularly asking the justices for “emergency” relief to put lower-court rulings on hold while they are challenged on appeal. Indeed, the Supreme Court granted emergency relief in both the social media and mifepristone cases.

Of the six times the court has granted emergency relief during its current term, four have come in cases from the Fifth Circuit, including one case in which the court of appeals had blocked the federal government from removing razor wire that Texas had placed along the border only after applying the wrong standard of review. If we go back a full calendar year, seven of the court’s 12 grants of emergency relief have come from this one part of the country.

The result has been to pull the Supreme Court’s docket even further to the right — a remarkable development given how conservative the current court already is. And although there are lots of signs that the justices are pushing back (last term, for instance, the Fifth Circuit had the highest reversal rate of any court in the country), the bigger problem is that the justices are being forced to take up these inherently partisan disputes in the first place.

The answer is obvious enough: It should be harder for litigants to steer challenges to nationwide policies to ideologically sympathetic judges in geographically remote parts of the country. Even the Judicial Conference of the United States — 26 judges who represent the policymaking arm of the judiciary — now agrees.

Last month, it rolled out a new policy for preferring random assignment of any lawsuit seeking to block state or federal government conduct. But that announcement provoked revealing backlash from Republican senators and a handful of lower-court judges. Just last week, the chief judge of the Northern District of Texas announced that his court would not be changing its case assignment rules. The Judicial Conference, at least, can’t force them to.

But the Supreme Court is another matter. The justices can interpret the federal venue statute to limit the circumstances in which lawsuits seeking changes that would apply across the nation can be brought in places like Monroe or Amarillo. They can formally approve amendments to the Federal Rules of Civil Procedure to the same end. And they can recommend legislation to Congress to rethink, more holistically, how and where all of these cases are brought.

If nothing else, these recent arguments reveal a court that is getting tired of history repeating. Even Justice Neil Gorsuch, no friend of the Biden administration, complained during the mifepristone argument about “a rash” of these kinds of nationwide suits in contexts that would not historically have succeeded. “And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on … an FDA rule or any other federal government action.”

Gorsuch is right to be frustrated. For once, the Supreme Court is the victim of right-wing litigation behavior, not the culprit. But the longer the court goes without pushing back against it, the more it can expect its docket to be filled with these kinds of cases going forward.

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