A landmark lawsuit filed by several states that wish to preserve their ability to engage in anti-transgender discrimination will be heard by a judge with a record of hostility toward LGBT rights. This is not a coincidence. Indeed, Texas Attorney General Ken Paxton (R), whose office has taken the lead in this suit, appears to have manipulated the court system intentionally to ensure that his case will be heard by an anti-LGBT litigator’s dream judge.
A little over a year ago, Judge Reed O’Connor handed down a surprising decision targeting same-sex partners who wanted time off to care for their sick spouse. The Family Medical Leave Act (FMLA) permits workers to take unpaid leave in order to care for a sick family member. A Department of Labor regulation, promulgated after the Supreme Court forbade the federal government from engaging in marriage discrimination but before this Constitutional guarantee was applied to the states, provided that same-sex couples who were lawfully married in one state could still take advantage of FMLA, even if they resided in a state that did not recognize their marriage.
The same week that this rule was supposed to take effect, however, Judge O’Connor ordered it halted in an opinion accusing the Labor Department of attempting to “unilaterally impose its definition of marriage upon the states.” If an employer wanted to fire a woman because she took a few weeks of unpaid time to be with her dying wife, O’Connor effectively ruled, then that employer should be allowed to do so if the woman lived in the wrong state.
It was a surprising decision, in no small part because O’Connor handed it down just weeks before the Supreme Court held that marriage equality is enshrined in the Constitution — and months after the justices started sending up signals warning lower courts that such a decision was coming. Judge O’Connor halted the regulation by issuing what is known as a “preliminary injunction,” an order that may only be issued if the plaintiffs can demonstrate a “substantial likelihood of success on the merits.” In March of 2015, no one who had paid a lick of attention to the Supreme Court’s moves on marriage equality could conclude that a challenge to the Labor Department’s regulation was likely to succeed.
Flash forward to the present, and O’Connor is set to hear another major challenge to LGBT rights. O’Connor is the federal district judge assigned to hear Texas v. United States, a lawsuit challenging a federal Education Department guidance advising school districts that they “may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”
The lawyers challenging this guidance, moreover, appear to have handpicked O’Connor to hear their case. Attorney General Paxton’s office is located in Austin, the state’s capitol. Yet Paxton’s legal team filed this lawsuit over 300 miles away in the Wichita Falls Division of the Northern District of Texas.
There is exactly one judge in the Wichita Falls Division of the Northern District of Texas: Judge Reed O’Connor.
Even more importantly, by filing the case in a federal court in Texas (as opposed to a court in many of the other plaintiff states) Paxton ensures that appeals in this case will be heard by the United States Court of Appeals for the Fifth Circuit, a very conservative court that is dominated by judges appointed by Republican presidents. The ordinary rule in the Supreme Court is that, if the justices split 4–4, then the decision of the highest-ranking lower court to decide the case stands. So the Fifth Circuit could very well have the final word on whether O’Connor’s decision stands, at least if the vacancy on the Supreme Court is not filled by the time this case reaches the justices.
It’s as if, simply by being clever about which court they filed their case in, Texas added another conservative justice to the Supreme Court. Justice Antonin Scalia may no longer be around to decide this case, but Paxton’s manipulations could ensure that the case ends with the same result that Scalia would have preferred.
If this saga sounds familiar, that’s because it should. Just as Texas attorneys filed their complaint in the trans bathroom litigation 300 miles away in an apparent attempt to lock down an anti-LGBT judge, they used an identical tactic to lock down an anti-immigrant judge in another high profile challenge to the Obama administration’s actions.
Brownsville, Texas is the home of Judge Andrew Hanen, and it is even further away from Austin than Wichita Falls. Yet Texas attorneys filed another case, also named Texas v. United States, in Brownsville at a time when Hanen was the only active federal judge in that town.
Hanen, who has a record of hostility toward immigration policies he views as too liberal, did not disappoint Texas. Judge Hanen did not simply halt programs that would have allowed nearly 5 million undocumented immigrants to temporarily work and remain in the country, he engaged in unusual tactics that delayed appellate review of his decisions, accused the Justice Department — based on questionable evidence — of lying in his courtroom, and even ordered a dox attack against 100,000 immigrants.
The fate of the programs Hanen halted are currently pending before the Supreme Court, which appeared fairly likely to split 4–4 on their legality during oral argument.
Texas, in other words, appears to have mastered the art of manipulating the federal judicial system to ensure that they get the results that they want, even when they don’t have a fifth vote on the Supreme Court.