When then-Louisiana Attorney General Jeff Landry last year sued to stop an EPA civil rights investigation, he could be almost certain who would decide the outcome.
The reason: Landry brought the lawsuit in a division of the U.S. District Court for the Western District of Louisiana where just two Senate-confirmed judges hear civil cases. And one of them — Judge James Cain Jr. — is allotted 90 percent of the workload, according to an order posted on the court clerk’s website.
That division of labor helps explain why Cain, a hitherto little-known jurist appointed by former President Donald Trump, has emerged as a pivotal arbiter of the Biden administration’s environmental and energy rules. As unease over purported “judge-shopping” mounts, his sway also illustrates the leeway that individual federal courts enjoy in crafting their case assignment procedures.
“The only thing one can say with confidence is that there is great variation,” said Russell Wheeler, a former deputy director of the Federal Judicial Center who is now affiliated with the Brookings Institution think tank.
Cain, who joined the federal bench in 2019, works out of the Western District’s Lake Charles Division in the southwestern corner of Louisiana. Since President Joe Biden took office in 2021, the state attorney general’s office, headquartered more than 120 miles away in Baton Rouge — home to the U.S. District Court for the Middle District of Louisiana — has opted to bring at least five lawsuits in Lake Charles.
All of those cases have landed in Cain’s courtroom, and any efforts to reverse his decisions must then make their way through the conservative-dominated 5th U.S. Circuit Court of Appeals and, eventually, the Supreme Court.
In a 2022 decision that was later overturned, Cain temporarily blocked EPA from using an interim “social cost of carbon” yardstick for gauging the dollars-and-cents toll of greenhouse gas emissions.
Earlier this year, Cain similarly stayed the Department of Energy’s pause on new approvals of liquefied natural gas exports to countries that lack free-trade agreements with the United States — a decision that is now on appeal in the 5th Circuit. In a permanent injunction last month, he barred EPA from pursuing civil rights inquiries in Louisiana tied to the undue burden of pollution on people of color and low-income communities.
While Cain stopped short of granting Louisiana’s request to throw out EPA’s underlying regulations, his decision effectively slammed the door on any further attempt by the agency to probe the potentially discriminatory effects of the state’s air quality permitting decisions along the Mississippi River industrial corridor often dubbed “Cancer Alley.”
Also before Cain’s court are a Freedom of Information Act suit for EPA records stemming from an earlier civil rights probe that ended last year with no finding of discrimination and a separate challenge to a Biden-era rule giving renewed authority to state water quality certifications for federal projects, online records indicate.
Joining Louisiana in that last suit are 10 other states and several industry trade groups. In March, Cain denied their bid for a preliminary injunction. He has yet to rule on a subsequent EPA motion seeking the suit’s dismissal.
A spokesperson for the Justice Department, which takes the lead in defending federal agencies against lawsuits, had no comment.
Cain does not give interviews related to pending cases, according to an assistant, and he did not reply to an emailed request for comment for this story. The son of a longtime state legislator, Cain was an attorney in private practice before then-President Trump nominated him for the federal judgeship in 2018. He won Senate confirmation the following year on a 77-21 vote.
The Louisiana attorney general’s office is now led by Liz Murrill, another Republican, after Landry was elected governor last fall. Apart from acknowledging receipt of an email, a spokesperson did not reply to questions asking about the office’s rationale for repeatedly filing lawsuits in the Western District court.
In a March interview related to DOE’s LNG export pause, however, Murrill said that liquefied natural gas has “a huge footprint” in southwest Louisiana.
“That’s not judge-shopping,” she said. “That’s filing in the venue where people have a huge economic investment in the industry that’s being attacked,”
But Lake Charles is far from the Mississippi River region that EPA targeted in the now-defunct civil rights probe. And while Louisiana has joined legal challenges to federal environmental policies brought by other Republican-run states, online records show that the attorney general’s office resumed filing cases on its own in the Western District’s Lake Charles Division only in 2021 — the year a Democrat arrived in the White House.
Division of labor
The Western District is by far the largest geographically of the three federal court districts in Louisiana: The Lake Charles Division is one of five spread among 42 parishes. Judges there have long used percentage breakouts to divvy up civil, criminal and Social Security cases in each division, records provided by the court clerk’s office show.
That system allows judges who live in each of those divisions to handle the bulk of the cases filed and reduces the need for travel, Terry Doughty, chief judge for the Western District, said in an interview. Doughty’s own division, based in the north-central Louisiana town of Monroe, is about a four-hour drive from Lake Charles, he said.
“We’re doing it the best way we can for the geographic area, for the needs of our district,” he said.
Doughty, also a Trump appointee, has drawn scrutiny for rulings on the Biden administration’s policies on transgender student protections and other issues brought before his division. Earlier this year, he told Reuters that he had “no problem” with a system that randomly assigns cases to judges, in accord with a recommendation by the Judicial Conference of the United States, the federal judiciary’s policymaking arm.
In late July, however, Doughty signed off on an update to the assignment process that leaves the percentage breakout system largely unchanged. The district’s judges, he said, “decided to go with what we had.”
Before joining the federal bench, Cain had no distinctive background in energy or environmental issues, according to paperwork submitted to the Senate Judiciary Committee. A list of his top 10 “most significant litigated matters” is dominated by damage and personal injury cases.
Committee members, including then-Sen. Kamala Harris, a California Democrat, didn’t probe his perspective on those issues during what was a relatively smooth path to Senate confirmation.
Harris, who went on to become vice president and is now the Democratic nominee for president in this November’s elections, in her written questions to Cain instead focused on sentencing policies and his role in representing the city of Lake Charles in a police brutality case.
‘Judge-shopping’
There are 94 federal district courts scattered across the United States. Of those, 55 broke up their jurisdictions into geographic divisions, according to a 2018 study published in the Columbia Human Rights Law Review.
While those divisions are typically authorized by Congress, individual courts decide on their own how to allot cases.
Louisiana’s two other federal district courts, both of which cover much less geographic territory than the Western District, are not subdivided. Each uses random assignment programs in splitting up judges’ workload, employees said.
In general, however, “it is no secret that judge assignments can be outcome determinative,” the 2018 study said. States and other plaintiffs have repeatedly maneuvered to bring lawsuits in front of jurists perceived as more inclined to rule their way.
The stakes have grown as litigants argue for nationwide injunctions to block federal policies. Both sides of the partisan divide have sought injunctions on issues including environmental law and immigration, according to a Congressional Research Service report that counted 19 nationwide orders issued against former President Barack Obama’s administration and at least 55 against the Trump administration.
Such “judge-shopping” is not illegal and has been “going on for years with both sides of the aisle,“ Doughty said in the interview. “We don’t ask for the cases; we just take what’s filed.”
Some legal scholars have pushed back on the idea that both Republicans and Democrats engage in judge-shopping.
During the Trump administration, for example, Democratic state attorneys general often filed suit in the same courts, but the cases were almost always filed in their own home courthouses, wrote Steve Vladeck, a law professor at Georgetown University, in an edition of his newsletter last year.
And Democratic state attorneys did not consistently set out to file their cases in single-judge divisions, he added.
“In other words,” he wrote, “the strongest charge that could be leveled is that Democratic AGs and private groups were engaged in forum shopping, not judge shopping. And even then, where would we prefer state AGs to file challenges to federal policies if not in either their home courthouses or D.C.?”
One headline-grabbing example of judge-shopping in the Biden era was that of Matthew Kacsmaryk, the only resident judge in the Amarillo Division of the U.S. District Court for the Northern District of Texas. Before Trump placed him on the bench, Kacsmaryk had represented a conservative Christian legal group. His anti-abortion views were no secret.
As recounted in a paper by Wheeler, the Brookings Institution scholar, a group of physicians in 2022 — “knowing Kacsmaryk would be their judge” — turned to the Amarillo Division in their challenge of Food and Drug Administration rules that allow the mail distribution of abortion medicines.
The next year, Kacsmaryk blocked the FDA rules with a nationwide injunction. Although the Supreme Court has since thrown out the physicians’ suit on legal standing grounds, the case offered a compelling example of what critics see as a practice that games the system and undercuts public confidence in the courts’ impartiality.
In guidance released in March, the Judicial Conference recommended that lawsuits seeking nationwide injunctions be assigned at random. Congressional reaction swiftly broke along partisan lines, winning praise from Democratic lawmakers and scorn from Republicans.
Six months later, Josh Blackman, a professor at the South Texas College of Law Houston, sees little sign that federal judges are following up.
“Even the liberal districts haven’t touched this,” Blackman said in an interview. “I think it’s going to die a slow death.”
Reporter Carlos Anchondo contributed.
