Today I was talking to a judge who supported the Judicial Conference’s new “policy.” I asked him how many single judge divisions there were. He had no clue. I asked him how many of those courts had issued national injunctions. He could name two, both of whom are in Texas: Judge Kacsmaryk (Amarillo, N.D.) and Judge Tipton (Victoria, S.D.)
So how many judges sit in single judge divisions? The answer is exceptionally difficult to figure out. Most district court web sites list the locations of courthouses, and may indicate which judges are assigned to which divisions. But judges often pick up cases in more than one divisions. None of that information is readily available on the web site. To figure out the distribution of cases, you would have to dig through division of work orders, which are subject to change at random intervals. Wikipedia lists the “duty stations” of various district court judges, but I have no idea how accurate that information is.
One of the most thorough analyses of this issue came in Steve Vladeck’s amicus brief in United States v. Texas, which was filed in July 2022. According to Appendix A in Vladeck’s brief, the Texas Attorney General filed challenges to federal policy in two single-judge divisions: Judge Tipton (Victoria, S.D.) and Judge Brown (Galveston, S.D.). At the time, Amarillo was not a single-judge division. In July 2019, Chief Judge Barbara Lynn had assigned herself 5% of Kacsmaryk’s cases, but in September 2022, now-Chief-Judge-Godbey superseded that order. (Judge Lynn took similar action against Judge O’Connor’s Wichita Falls Division; that reassignment has also been rescinded.)
There have been more changes. Judge Tipton was reassigned to the Houston division, and is no longer drawing cases from Victoria. That single-judge division no longer exists. And for those keeping score at home, Judge Tipton recently found that Texas lacked standing to challenge a federal immigration policy.
So if my math is right, the only other single judge division in Texas that Vladeck identified is Judge Jeff Brown in Galveston. I should note that Judge Brown issued an order that signaled he was widely interpreted as being unreceptive to strategic litigation cases. Conservative litigants have taken the hint.
In practice, there is a grand-total of one judge in Texas, who sits in a single-judge division, who is known for issuing national injunctions: Matthew Kacsmaryk. That’s it.
There are ways for higher courts to deal with lower courts that make mistakes: appellate review. Indeed, Judge Kacsmaryk has had several cases up at the Supreme Court in recent years that have been reversed/stayed/vacated. I could add to that list Judge Sutton’s reversal of Judge Newman’s nationwide injunction from the Dayton single-judge division in Arizona v. Biden. But you don’t deal with judges who issue rulings you disagree with by taking cases away from them.
If the Judicial Conference is serious about this policy, it can circulate to the judiciary a listing of all nationwide injunctions that have been issued by single-judge divisions. I suspect this list would be very, very small. And that list could be checked against appellate record, to see if those judgments were sustained or reversed. I suspect no such list actually exists, and the Conference put forward a policy based on grievances against a few judges who have been in the news. Indeed, if you scan through the letters from Schumer and Whitehouse, they almost exclusively talk about Texas. If the Conference doesn’t put forward such a list, certainly local clerk’s offices can generate this information. Moreover, if the Conference doesn’t produce such a list, it suggests they made the decision with knowing or caring about the date, because it’s not about the data, but about signaling the right virtues to critics.
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