This Federal Judge is More Powerful than the President

Reed O'Connor is the right's go-to judge when they want to bend the law to their culture war will

Think about the many high profile legal cases that have come and gone over the last ten years. There was the battle over the many aspects of the Affordable Care Act (ACA), and then Covid vaccine requirements. The courts have begun to parse out how equal trans people can be under the law. There’s been a steady stream of pro-gun court rulings. And of course, the overturning of Roe v. Wade and the constitutional right to abortion. Through all of this, whenever Republicans want a victory in a legally specious case, particularly one on its ascent to the U.S. Supreme Court, they turn to one man.

Federal Judge Reed O’Connor.

O’Connor was nominated to the federal bench in the Northern Texas District by George W. Bush in 2007. He’s one of only two judges serving in his district, meaning that any case filed in his district will be heard by him. And that’s a problem, because the judge doesn’t really care much about existing law, and instead uses his own conservative interpretation of jurisprudence to advance  the most conservative outcome possible.

O’Connor’s name hit the news again recently over a ridiculous overreach of his judicial authority. The U.S. Department of Justice (DOJ) has been going around subpoenaing the health records of trans patients in a bunch of blue states. NYU Langone in New York City, Boston Children’s Hospital— the list goes on. A Rhode Island hospital fought back, filing a legal challenge in its own federal district court and getting the subpoenas blocked.

The DOJ then turned to O’Connor to get favorable treatment and force the New England courts to submit to out-of-state conservative rule. What resulted is a set of dueling legal judgements between O’Connor and more liberal federal judges in New England.

Mark Joseph Stern, a legal journalist for Slate, called O’Connor’s power grab in the case “impeachable.”

Rhode Island District Judge Mary McElroy held an explosive hearing on May 12, accusing the DOJ of misleading the hospital, her court, and the court in Texas. Per the excellent Chris Geidner in Law Dork: 

Highlighting the incredibly invasive plans potentially involved in DOJ’s effort, McElroy told the relatively new DOJ lawyer before her, Brantley Mayers, counsel to the Assistant Attorney General, “[I]t is ridiculous to say that you’re going to find 14- and 15-year-olds who are undergoing gender reassignment or gender treatment and question them about what was told to them by their doctor. How invasive is that?”

McElroy later enjoined the DOJ and O’Connor, issuing the legal equivalent of a smackdown.

Essentially, McElroy ruled that there is no reason why a court in North Texas should have jurisdiction over a case across the country, and that O’Connor’s court is not a suitable place to decide conflicts between the federal government and New England states.

In response, the DOJ has turned to the U.S. Attorney’s Office in Northern Texas to issue criminal grand jury subpoenas to these same hospitals, in an attempt to make the cases legally relevant to Judge O’Connor’s federal district. The Northern Texas U.S. Attorney’s Office also just so happens to be stacked with folks who have clerked with O’Connor.

On Tuesday evening, the First Circuit Court of Appeals intervened, overturning McElroy’s ruling, claiming that the document request for anonymized records held while the matter was adjudicated was not enough of a burden on the defendants to justify relief. The lone Trump appointee on the First Circuit panel went even further in a concurrence which claimed the First District had no right to intervene in a matter of judgement from the North Texas court.

If this feels to you like a ridiculous case of judicial overreach, welcome to Reed O’Connor’s world.

O’Connor has been an amateur obsession of mine going back about a decade, when he issued nationwide stays on a whole series of trans-related federal policies from the Obama administration.

Since then, I have watched him morph into the conservatives’ pet judge, whom they scurry to whenever they need to implement their own legally specious policy, or when they need to block a liberal policy they don’t like.

O’Connor seems like a reclusive figure at first blush. There are only a handful of photos available of him on the whole internet, and outside of his outlandish conservative judgements, there’s almost no press about him.

His early career is rather unique for a federal judge, as he eschewed the traditional path of clerking for a more prominent judge. He began in private practice before becoming a district attorney in Tarrant County, Texas. He then graduated to the U.S. Attorney’s Office in Tarrant County and along the way served as legal counsel for the Senate Judicial Committee under Chair Orrin Hatch (R-UT) and Chief Counsel for Senator John Cornyn (R-TX).

He’s a Federalist Society lifer, and serves as the preeminent example of what the Federalist Society wants from its activist judges.

Whenever I see a news item about an unnamed federal judge doing some bullshit with a ridiculous case, I assume it was O’Connor and 9 times out of 10, I’m right. A journey through his Wikipedia page (I know, I know) is a who’s who of famous conservative legal cases.

In August 2016, he ruled against the Obama administration’s interpretation of Title IX that would force schools to allow trans students to use facilities according to their gender identity. He issued a nationwide injunction blocking the Obama administration from enforcing the rule, and Trump later rescinded the Obama-era policy. This was the case that first put O’Connor on my radar as a trans journalist.

In December that year, O’Connor issued a preliminary injunction against an Obama rule pertaining to Section 1557 of the Affordable Care Act which interpreted sex protections under the law to protect trans people’s access to gender affirming care. Trump later rescinded that rule in his first term.

O’Connor has a long history of meddling with the implementation of the ACA beyond just Section 1557. In 2018, he issued another ruling about the massive health care law, holding that the ACA’s Certification Rule was unconstitutional. This was reversed on appeal.

In December that year, he ruled that the entire ACA was unconstitutional, holding that the individual mandate was unconstitutional saying "[the] Individual Mandate can no longer be fairly read as an exercise of Congress's Tax Power and is still impermissible under the Interstate Commerce Clause—meaning the Individual Mandate is unconstitutional.

"Legal experts on both sides of the aisle were astonished at O’Connor’s brazen manipulation of the law to reach a predetermined political outcome. The Washington Post reported that legal scholars said the judge’s ruling was a “tortured effort to rewrite not just the law but congressional history."

Even conservative legal scholars criticized O’Connor’s decision, with Ted Frank, director of litigation at the conservative Competitive Enterprise Institute, saying the ruling was "embarrassingly bad."

O’Connor’s ruling was later upheld by the New Orleans-based Fifth Circuit Court of Appeals, itself a haven of audacious conservative judicial activism, but the case was eventually reversed by the U.S. Supreme Court in a 7-2 ruling.

Throughout the late 2010’s and early 20’s, O’Connor has continued his reign of judicial terror. In 2021, he ruled that the Religious Freedom Restoration Act provides religious employers an exemption from Title VII employment nondiscrimination protections pertaining to sex.

Over the years, O’Connor’s court has been a reliable venue for conservatives. He’s heard arguments in cases about Title X funding for federal reproductive health funding. In 2023, he struck down an ACA requirement that insurers must cover PrEP, the HIV prevention drug and other preventative treatments.

That same year, he tried to ban the sale of Mifeprisotone (whoops no sorry that was his clone and fellow conservative hack judge Matthew Kacsmaryk, a similarly placed activist judge in a single judge division in Northern Texas).

Phew, that was a lot of cases to recount. A lot of these were pulled from his Wiki page, but many of them were just cases that I remembered covering at the time. So why is it that O’Connor so often finds himself with cases that carry such national consequence over and over again?

It’s actually a simple answer and a fairly old concept within the legal system: venue shopping, the act of filing your case in a court that is most likely to hear your case favorably.

Peter Shamshiri, co-host of the 5-4 Podcast and If Books Could Kill, explained to Burns Notice that O’Connor is “a point of leverage in the system for the right, because everyone in the conservative legal movement knows they can get a case in front of him and win at the trial level, even if it's only temporary.”

O’Connor is able to do all of this because he is one of the only judges at the Federal Court in the Northern Texas District, meaning that any cases filed there will most likely be heard by him (Noting here that I am not an attorney and may have a slightly inaccurate perception of how this works, but it’s close enough for you to get the idea).

Venue shopping is nothing new, and everybody does it. In fact, you’re not being the best lawyer you can be if you don’t seek every available advantage for your client. But O’Connor has managed to take the practice to new levels. There is essentially no decision too extreme that he isn’t willing to come to on behalf of conservative parties in his court. He has essentially set up a one-stop boutique for whatever judgement conservatives need in a given situation and no one can stop him.

A Democratic president wants to set a controversial policy? Not so fast Buster, O’Connor to the conservative rescue! A Republican president wants to subpoena the private patient records of literal children across the country? That’s A-OK to Mr. O’Connor, and no, not even the federal courts that are supposed to represent those children’s interests can stop him.

Under a normal legal system, a rogue judge like this would be put in check by the circuit court overseeing his district, in O’Connor’s case that would be the Fifth Circuit Court of Appeals. Except, they are just as batshit loony as O’Connor, and given the right panel, produce some of the same legally specious decisions.

Their extremism only empowers O’Connor. This leaves just the very conservative U.S. Supreme Court as the only check on O’Connor’s power, as it did in the ACA constitutionality case. But having this pet judge that can rule from his North Texas court in cases controlling people all over the country is incredibly dangerous for our experiment in democracy.

He is the legal equivalent of a Grand Vizier, overseeing the legal profession to ensure that conservatives always get the policy and legal judgement they want. When I first started following O’Connor’s decisions, I felt like I was one of only a few who understood the danger that was growing with his power. But others have noticed as well and see him as an opportunity.

When Elon Musk decided to launch a ridiculous lawsuit against advertisers who pulled their ad buys from Twitter/X, he filed the case in O’Connor’s court. It was then revealed that the judge was a shareholder in SpaceX/Tesla, and he eventually recused himself from the case.

Nevertheless, according to X’s developer agreement, all developer-related litigation filed against Musk’s megacompany must be filed in the Northern Texas Federal Court district, and would likely be heard by O’Connor. How convenient for the richest man on Earth to have your own personal judge who personally benefits from ruling your way.

To me, it’s a sign of trouble if one man in the entire legal system can wield so much power: the power to overrule presidential authority, or to overcome the power of other federal court districts on the other side of the country. It’s not a stretch to say that O’Connor holds more power in the legal sense than the president. He might not be able to order a drone strike on an Iranian girls school, but O’Connor has broad authority to dictate federal law simply because conservatives know the fix is in when cases hit his court.

Like I’ve said before, I am not a lawyer, so I’m not sure anyone needs my ideas on how to fix a problem like Reed O’Connor. But as the idea of court reform becomes more and more popular by the day, I hope Democrats can look beyond changing the Supreme Court and look at these single or double judge districts like the one O’Connor will be ruling over for decades to come.

This man has spent a career legally terrorizing Americans across the country, many of them trans people like me. Today it’s trans kids in Rhode Island, tomorrow it could be you. It’s Reed O’Connor’s world, we’re all just living in it—until he rules otherwise.

Is that democracy?

Thank you so much for reading! This piece took all week to write, and thanks again to Christine for editing (seriously check out our bundle!). Reminder we're on YouTube now as well talking everything Burns notice covers each week.