If you paid attention to Supreme Court litigation during the Biden administration, you would have noticed a surprisingly high number of cases with names like Biden v. Texas or United States v. Texas. Texas’s outgoing attorney general, Ken Paxton, once bragged that he sued the Biden administration 106 times during his time as Texas’s top legal officer. 

For years, Texas was the locus of the Republican Party’s quest to shape policy through litigation, especially during Democratic presidencies when Republicans could not use the US Department of Justice to bring cases.

But the Republican Party’s entire legal strategy was dealt a very serious blow during Tuesday’s electoral landslide for Republicans. One of the casualties was Mayes Middleton, the Republican who hoped to succeed Paxton as attorney general. For the first time since the late 1990s, Texas’s top lawyer will be a Democrat, Attorney General-elect Nathan Johnson.

Texas’s central role in political litigation won’t end entirely, but this upset means no more lawsuits brought by the state of Texas that seek to impose the Republican Party’s policies from the bench. In the nearly three decades since a Democrat has served as Texas’s attorney general, Republicans have used their control over the state AG’s office to shape everything from immigration policy, to environmental regulation, to who receives overtime pay.

But, thanks to Johnson’s victory this week, they will no longer control one of the most powerful litigation shops in the United States.

Three reasons why Texas is so central to the Republican Party’s legal strategy

The Texas attorney general role is such an important prize for Republicans for three reasons. One is simply that Texas is a big, wealthy state that employs many lawyers. The attorney general alone oversees nearly 750 attorneys, about as many as you may find in a large multinational law firm. So Texas can afford to divert several — or even several dozen — of these lawyers into partisan litigation.

The second reason is that Texas’s federal courts are unusually friendly to Republicans, and they follow unusual rules that all-but-guarantee that the Republican Party will win short-term victories in many cases.

Many of Texas’s federal trial courts effectively allow litigants to choose which judge will hear their case. That means that when Texas (or any other litigant challenging a Democratic policy) files a lawsuit, it can often handpick a judge who will embrace legal arguments that most judges would find ridiculous. In 2022, for example, anti-abortion activists selected Matthew Kacsmaryk, a Trump-appointed judge known for far right religious views and his reactionary views on sexuality, to hear their lawsuit seeking to ban the abortion drug mifepristone. Kacsmaryk promptly complied with their request — although his decision was eventually tossed out by a unanimous Supreme Court.

The immediate upshot of Johnson’s victory is that the Texas AG’s office will soon be less relevant than it has been for many years.

After being heard by a handpicked trial judge, moreover, federal cases in Texas appeal to the US Court of Appeals for the Fifth Circuit, which is dominated by MAGA-aligned judges and is one of the few courts in America where the median judge is more sympathetic to Republicans than the median Supreme Court justice. 

The Supreme Court, in fairness, often reverses this outlier appeals court. But the justices typically only grant about 60 of the 7,000 to 8,000 petitions asking them to review lower court decisions. So, once a Democratic litigant loses in the Fifth Circuit, their only recourse is to beg for mercy from a Republican Supreme Court that ignores most of the cases that are brought to its attention.

And even when the Supreme Court does reverse the Fifth Circuit, it often delays that decision long enough to hand Republicans a significant policy victory. In 2021, for example, Kacsmaryk ordered the Biden administration to reinstate a Trump-era border policy. Though the Supreme Court eventually reversed Kacsmaryk, it sat on the case for nearly an entire year — leaving Kacsmaryk’s injunction in place the entire time.

Similarly, after MAGA Judge Drew Tipton issued an unlawful order limiting the Biden administration’s authority over Immigration and Customs Enforcement (ICE), the Supreme Court allowed Tipton’s order to remain in effect for 11 months before finally intervening.

Notably, both of these lawsuits were brought by Paxton, in his role as Texas attorney general.

Of course, now that Texas will no longer bring the same mix of partisan cases to the Fifth Circuit, private litigants may still do so — the mifepristone case, after all, was filed by anti-abortion groups and by anti-abortion doctors, not by Paxton. But that brings us to the third reason why Republican control of the Texas attorney general’s office is so important to the party’s legal strategy: States are particularly effective plaintiffs in federal litigation.

The Constitution only allows a plaintiff to bring a federal lawsuit if they can show that they were injured in some way by the defendant they are suing — a requirement known as “standing.” This requirement often trips up litigants who wish to challenge a federal policy that they find objectionable, but that doesn’t actually impose any special obligations upon them. The mifepristone litigation fizzled, for example, because none of the plaintiffs could show that they were harmed in any way by the fact that mifepristone is legal. As the Supreme Court explained, “a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”

But the Supreme Court said in Massachusetts v. EPA (2007) that states are “entitled to special solicitude in our standing analysis,” so states are often allowed to bring suits that private litigants cannot. And a large state like Texas often has many expenses and revenue streams that are impacted by virtually any federal policy. In 2015, for example, the Fifth Circuit concluded that Texas had standing to challenge a major Obama-era immigration program because the program would allow more immigrants to reside in the state of Texas, and that would cost Texas money because it would have to issue these immigrants driver’s licenses.

Of course, Texas is only one of three states within the Fifth Circuit. Once Johnson is sworn in as Texas’s Democratic attorney general, the Republican attorneys general of Louisiana and Mississippi will still be able to bring cases to this MAGAfied court. And they will enjoy the same “special solicitude” the courts give to Texas. But both the Mississippi and the Louisiana AG’s offices are much smaller than Texas’s. So they will likely only have the resources to bring a fraction of the number of partisan lawsuits filed by Paxton.

The Texas AG’s office was also a major pipeline for talented Republicans to advance their careers

No doubt because the Texas attorney general’s office played such an important role in shaping the Republican Party’s legal strategy, it was an attractive employer for many talented Republicans who spent a few years working in this office before moving on to bigger things.

Though Paxton lost his bid for the US Senate on Tuesday, it’s notable that Texas Republicans chose the sitting AG as their Senate candidate. Outgoing Texas Gov. Greg Abbott, a Republican, is also a former Texas attorney general. As is outgoing Republican US Sen. John Cornyn. Texas’s other senator, Republican Ted Cruz, spent five years as Abbott’s state solicitor general.

Similarly, two of the leading contenders for a Republican nomination to the Supreme Court, Fifth Circuit Judges James Ho and Andrew Oldham, also previously held high-level positions in the Texas AG’s office. With Democrats now set to control the Senate for Trump’s last two years in office, it’s hard to imagine any nominee will be confirmed to the Supreme Court for as long as Trump is president. But Oldham, at least, is still young enough that he could remain a contender in a future Republican administration.

These strivers launched very successful careers in the Texas AG’s office because Texas’s unusually right-wing federal courts allowed lawyers who worked in that office to be extraordinarily successful in advancing Republican policy goals, and in sabotaging Democratic administrations.

The immediate upshot of Johnson’s victory is that the Texas AG’s office will soon be less relevant than it has been for many years. Democrats won’t be able to wield this office in the same way that Republicans did, because Texas’s far-right federal courts aren’t going to start striking down Republican policies just because a Democratic state AG asks them to do so. But, at the very least, Democrats just neutralized one of the most powerful weapons in the Republican arsenal.

Source: Vox.