A law professor told the U.S. Supreme Court on Monday that Texas’ “manipulative litigation behavior” in challenges to the Biden administration’s policies is worse than forum shopping and amounts to “a deliberate strategy of judge shopping.”
University of Texas School of Law professor Stephen Vladeck’s comments came in an amicus brief he filed in Texas’ and Louisiana’s challenge of the federal government’s September 2021 guidance directing immigration officials to prioritize the arrest and deportation of certain groups of noncitizens who entered the country illegally. Vladek analyzed 28 lawsuits Texas has filed against the Biden administration and found that 20 of them had been filed in district courts in Texas. Of those, 19 ended up before judges appointed by a Republican president.
“This situation is no coincidence — Texas has intentionally filed its cases in a manner designed to all-but foreclose having to appear before judges appointed during Democratic presidencies, including by not filing a single case where the Texas state government, including the Office of the Attorney General, is actually located — the Austin Division of the Western District of Texas,” Vladeck wrote.
In a majority of those cases, Vladeck told the court that Texas had a 95 percent or greater chance of “drawing a specific judge.”
“The facts and data underlying Texas’s recent litigation demonstrate that this is indeed a concerted tactic — not a coincidence,” he wrote.
The brief he filed Monday is an expansion of the same arguments Vladeck made in an amicus brief he filed in this case this summer before the Supreme Court declined to stay the district court’s nationwide injunction pending the outcome of the appeal.
The case was appealed to the U.S. Supreme Court on July 8, asking for a stay that would prevent the district court’s June 10 order from taking effect.
Vladeck noted in the brief that Chief Justice John Roberts, in his 2021 Year-End Report on the Federal Judiciary, singled out judge shopping in patent cases. Litigants had been filing what Vladeck called a “wildly disproportionate” percentage of patent suits in the single-judge Waco Division of the Western District of Texas, where U.S. District Judge Alan Albright, a former patent lawyer, sits.
Sources have previously told The Texas Lawbook that complaints from U.S. senators Patrick Leahy and Thom Tillis to the chief justice about the issue and pressure from the Fifth Circuit eventually caused Chief Judge Orlando Garcia to issue a July 24 order mandating that all new patent infringement lawsuits be “equitably distribute(d)” between the district’s 12 judges.
“If litigants like Texas are regularly able to obtain nationwide injunctions from judges whom they have hand-picked to hear their complaints, it should go without saying that public faith in the independence of the federal judiciary will be undermined,” Vladeck told the court.
The case is United States of America et al. v. State of Texas and State of Louisiana, case number 22-58.