Article III, Section 1 of the United States Constitution says that there shall be “one Supreme Court.” Chief Justice John Marshall, in his landmark opinion in Marbury v. Madison, established that the Supreme Court would be the final arbiter of what the law is in the United States.
But don’t tell that to judges in Texas.
Late Sunday night, Judge Reed O’Connor of the Northern District of Texas issued an unprecedented preliminary injunction order, blocking the Obama Administration from implementing federal guidelines on the rights of transgender students to attend public schools free from discrimination. The order prevents enforcement of federal policy clarifying that transgender students are protected by Title IX, and have the right to use restrooms and facilities in accordance with their gender identity. Astonishingly, the judge issued a nationwide injunction, usually the purview only of the Supreme Court, instead of one limited to the court’s jurisdiction.
This power grab by a single judge, and the risk it carries for public school students, is bad enough. But it’s not the first time a conservative Texas judge has appropriated the power of the Supreme Court for himself.
Early last year, a judge in the Southern District of Texas (with the help of savvy forum shopping by the ultra-conservative Texas Attorney General’s office) accomplished the same trick. It happened in Brownsville, when Judge Andrew Hanen—who, like Judge O’Connor, was an appointee of President George W. Bush—issued an extraordinary preliminary injunction order that blocked the Obama Administration from implementing DAPA, a deferred action program for undocumented parents of legal permanent residents or U.S. citizens, nationwide.
That order was roundly criticized for having overstepped the bounds of the district court’s power. Worse still, Judge Hanen’s power grab received the blessing of the conservative Fifth Circuit Court of Appeals, currently dominated by judges appointed by Ronald Reagan and George W. Bush. (A motions panel of the court denied the Obama Administration’s motion to stay Judge Hanen’s order by a 2-1 vote—two Reagan and Bush appointees against one Obama appointee.)
Of course, these developments should come as no surprise if you step back and look at the disastrous state of the federal judiciary in Texas. Thanks to Republican obstruction led by Texas Senators Ted Cruz and John Cornyn, Texas has the most federal judicial vacancies of any state in the country. Moreover, all twelve of Texas’s current vacancies (including two on the Fifth Circuit) have been declared judicial emergencies by the Administrative Office of the United States Courts. That means Texas is home to more than a third of the 32 judicial emergencies nationwide.
Cruz and Cornyn have systematically delayed and obstructed filling federal vacancies in Texas for years. Two Texas seats on the Fifth Circuit have sat vacant for a combined total of 2,447 days—more than six and a half years. The Southern District of Texas, where Judge Hanen sits, has two vacancies, while the Northern District of Texas, where Judge O’Connor sits, has four vacancies. In fact, the Northern District of Texas has no Obama appointees whatsoever, with Republican appointees outnumbering Democratic appointees by three to one.
The bottom line is that the Texas Attorney General’s office has figured out it doesn’t need the Supreme Court to thwart laws nationwide it doesn’t agree with, just lower court judges that are willing to grab that power for themselves. Sure, Texas is rolling the dice when it files a lawsuit that it will end up before someone like Judge O’Connor or Judge Hanen. But because of Republican obstruction, almost all of the federal district courts in Texas, as well as the Fifth Circuit, continue to be dominated by Republican-appointed judges. So the Texas Attorney General’s office has plenty of reason to feel lucky.