A handful of conservative judges, mostly in the South, are wielding outsized influence over health care policy in the Biden era.
Why it matters: Thanks in part to former President Trump's record of judicial appointments, conservatives have ended up with an express lane of friendly judges who have issued sweeping decisions.
The big picture: The advocacy groups that coordinate big, 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," said Michele Goodwin, a professor of law at the University of California, Irvine.
- In this "court shopping" practice, "litigants might be looking for a judge who has a history of being affiliated with the movement that they're a part of," Goodwin added.
- Court shopping is not exclusively done by conservatives.
- "This was increasingly common during the Trump administration," said Paul Nolette, a political science professor at Marquette University. "Democrats used it to their advantage, and now the shoe's on the other foot."
Zoom in: U.S. District Judge Matthew Kacsmaryk in the Northern Texas District Court ruled in April that the Food and Drug Administration shouldn't have approved the widely-used abortion pill mifepristone, and attempted to override that decision — a step no court has ever taken before.
- The Supreme Court ultimately blocked that decision, but Kacsmaryk— a Trump appointee — has also become a go-to in cases challenging a variety of Biden policies. He ruled last year that the Title X federal program, which provided free and confidential contraception to anyone regardless of age, was unconstitutional.
- Kacsmaryk's family and friends described him as a devoted anti-abortion advocate to the Washington Post. He has also contributed to the conservative Federalist Society and was president of the group's Fort Worth chapter.
- Kacsmaryk is the only judge in the district court's Amarillo division — so conservatives know what they're getting when they file there.
U.S. District Judge Reed O'Connor — a Federalist Society contributor and Bush appointee in the Northern Texas District Judge — is often a go-to judge for Republicans targeting Democratic policies.
- In 2018, he declared the Affordable Care Act was unconstitutional, a ruling the Supreme Court then reversed in 2021.
- The ACA was back on his desk this year when he struck down the law's preventive health coverage, which requires employers and insurers to fully cover cancer screenings, HIV prevention, behavioral counseling and other services. The New Orleans-based U.S. 5th Circuit Court of Appeals stayed that ruling while it reviews the case.
U.S. District Judge Terry Doughty — a Trump appointee in the Western Louisiana District Court — has heard more multi-state challenges targeting Biden policies than any other federal judge, per an analysis from Bloomberg Law.
- Doughty was one of multiple judges in 2021 who halted a COVID vaccine mandate for health workers at federally funded facilities in multiple states while suggesting the shots were not useful.
- The following year, he struck down another vaccine mandate for staff and volunteers in the federal Head Start program in 24 states.
The intrigue: An appeal to a ruling issued in any of the above courts would take place in the staunchly conservative 5th Circuit federal appellate court and from there to the 6-3 conservative majority Supreme Court.
- Conservatives are often able to score unusually sweeping victories in district court, and defend them on friendly terrain all the way through.
Don't forget: Judges appointed by Democrats blocked Trump-era rules, such as the so-called "Muslim Ban," a measure to cut food stamp benefits for unemployed people, and a measure rolling back waterway protections.
- Some of these rulings were ultimately reversed by the Supreme Court, which then had a 5-4 conservative majority.
Between the lines: In 2018, under the Trump administration, the Justice Department warned that court shopping is inherently tied to nationwide injunctions, arguing this could "do lasting harm to the public's confidence in the rule of law."
- The Supreme Court has never ruled on the constitutionality of nationwide injunctions, but it has previously warned lower courts to be cautious about issuing nationwide injunctions that could negatively impact the rule of law.
- "If you can get a favorable judge, then not only are you more likely to win on the merits, but within a week or two of potentially of filing the suit, you can get a preliminary injunction that just shuts down the whole policy indefinitely," Nolette said.
What we're watching: The top lobbying organization for the pharmaceutical industry on Wednesday filed a lawsuit in the Western Texas District Court challenging the Biden administration's law aimed at lowering drug prices, arguing that it's unconstitutional on several grounds.
- A judge has yet to be assigned in the case.
