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Court shopping is highlighted by federal health care rulings.

Court shopping is highlighted by federal health care rulings.
Source: axios.com

During the Biden administration, a small number of conservative judges, mostly from the South, had a significant impact on health care policy.


What it means: Conservatives now have access to amiable judges who have made significant decisions, in part because of the track record of appointments made by former President Trump to the judiciary.


The larger context: According to Michele Goodwin, a professor of law at the University of California, Irvine, advocacy groups that coordinate large, politically charged cases almost always try to get those cases in front of a judge who they "think is favorable for the outcome they're looking to achieve."

  • Goodwin added that "litigants might be looking for a judge who has a history of being affiliated with the movement that they're a part of" in this practice known as "court shopping."
  • Conservatives are not the only ones who court shop.
  • Marquette University political science professor Paul Nolette stated, "This was increasingly common during the Trump administration." The Democrats took advantage of it, and now the situation is reversed."


Focus in: In April, Northern Texas District Court U.S. District Judge Matthew Kacsmaryk said that the Food and Drug Administration shouldn't have approved the widely used abortion pill mifepristone. He also tried to override that decision, which was a first for a court.

  • That decision was eventually overturned by the Supreme Court, but Kacsmaryk, a Trump appointee, has also become a go-to lawyer in cases that challenge a variety of Biden policies. He decided last year that the Title X government program, which gave free and private contraception to anybody paying little mind to maturity, was illegal.
  • According to the Washington Post, Kacsmaryk's family and friends described him as an ardent opponent of abortion. He has also contributed to and served as president of the Fort Worth chapter of the conservative Federalist Society.
  • Because Kacsmaryk is the only judge in the Amarillo division of the district court, conservatives know what to expect when they file a case there.


U.S. District Judge Reed O'Connor, a Bush appointee and contributor to the Federalist Society who serves as the Northern Texas District Judge, is frequently the judge Republicans turn to when they want to challenge Democratic policies.

  • He declared the Affordable Care Act to be unconstitutional in 2018. In 2021, the Supreme Court overturned his decision.
  • This year, he overturned the Affordable Care Act's preventive health coverage, which requires employers and insurance companies to fully cover services like cancer screenings, HIV prevention, behavioral counseling, and others. That decision has been put on hold while the case is being reviewed by the U.S. 5th Circuit Court of Appeals in New Orleans.


According to a Bloomberg Law analysis, U.S. District Judge Terry Doughty, a Trump appointee in the Western Louisiana District Court, has heard more multi-state challenges against Biden policies than any other federal judge.

  • In 2021, Doughty was one of several judges who, on the grounds that the shots were ineffective, stopped a COVID vaccine requirement for health workers at federally funded facilities in multiple states.
  • He overturned a second vaccine requirement for volunteers and staff in the federal Head Start program in 24 states the following year.


The suspense: A ruling issued by any of the preceding courts would be appealed to the 6-3 conservative majority Supreme Court from the steadfastly conservative 5th Circuit federal appellate court.

  • In district court, conservatives frequently obtain unusually large victories and defend them on friendly ground throughout.


Never forget: The so-called "Muslim Ban," a measure to cut food stamp benefits for unemployed people, and a measure to roll back waterway protections were among Trump-era regulations that were blocked by judges appointed by Democrats.
  • The Supreme Court, which at the time had a conservative majority of 5-4, eventually overturned some of these decisions.


Behind the scenes: "Do lasting harm to the public's confidence in the rule of law," the Justice Department said in 2018 during the Trump administration, warning that court shopping is inherently linked to nationwide injunctions.

  • Although it has previously cautioned lower courts against issuing nationwide injunctions that could have a negative impact on the rule of law, the Supreme Court has never decided whether or not nationwide injunctions are constitutional.
  • Nolette stated, "If you can get a favorable judge, then not only are you more likely to win on the merits, but you can also get a preliminary injunction that just shuts down the whole policy indefinitely within a week or two of potentially filing the suit."


What we are observing: On Wednesday, the most powerful lobbying group for the pharmaceutical industry went to the Western Texas District Court to challenge the Biden administration's law that aims to lower drug prices. They claim that the law is unconstitutional on a number of different grounds.

  • The case has not yet been assigned a judge.

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