The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Texas should not be required to seek preclearance from the federal courts before its laws go into effect"
Well, at least from the U.S District Court for the Western District of Texas, Austin Division.
Critics often accuse the Texas Attorney General of improper forum shopping--picking certain district courts in Texas where there are extremely high odds of drawing a specific judge. This criticism should be directed at Congress, which creates single-member districts. (Chief Justice Roberts made this point in his end-of-year message.) The Attorney General, like any other litigant, should select the forum that is best suited for his case. And forum shopping is rational. Moreover, it is unfair to criticize the judges who receive these forum-shopped cases. They do not have control over their dockets--unless the Chief Judge randomly takes a certain percentage of their cases, which does happen.
Still, conservatives are not the only litigants who forum shop in Texas. Progressive groups have found their court of choice. No, it is not in Brownsville or Amarillo or Victoria or Tyler or Lubbock or Galveston or Fort Worth. It is the U.S. District Court for the Western District of Texas, Austin Division. By my count, virtually every high-profile litigation brought against the state of Texas begins in that division. The division has two active district court judges, one appointed by President Obama and one appointed by President George W. Bush. And there is one senior judge appointed by President George H. W. Bush. On paper at least, the bench looks balanced, perhaps even with a slight conservative tilt. But in reality, the Austin division is the Wichita Falls for progressives. This forum selection appears neutral--sue the Governor and Attorney General in the state capital--but the choice is quite strategic.
I've lost count of how many high-profile Texas laws and policies were preliminarily enjoined in that division. Consider a few: the Texas Israeli boycott law, the Texas social media law, the S.B. 8 fetal heartbeat law, the Texas ban on masks in schools, a limitation on ballot drop-off locations, restrictions on abortion during the pandemic, law concerning fetal remains, the abortion law at issue in Whole Woman's Health v. Hellerstedt, Planned Parenthood's ability to participate in Medicaid, and so on and so on. (I've also had my fair share of losses in that division--which we selected--and I've always felt like I had a fair shake.) Invariably, most of these injunctions are stayed in the Fifth Circuit.
This history brings me to Netchoice, LLC v. Paxton. Once again, a high-profile Texas law was challenged in the Austin Division. And once again it was preliminarily enjoined. And once again, the Fifth Circuit stayed that injunction. The Plaintiffs filed an emergency application with the Supreme Court. And, on the shadow docket, the Court ruled for the Plaintiffs. Here, I wish to flag one line that rings true for Texas court watchers:
While I can understand the Court's apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.
Or at least preclearance from the U.S. District Court for the Western District of Texas, Austin Division.
