A Federal Judge Couldn’t Handle My Criticism. So He Made Fun of My Tweets.

Two decades ago, writing about Bush v. Gore, my friend and former dean Ward Farnsworth suggested that “those who accuse the majority of having partisan motives underestimate the good faith of the justices; but those who acquit the Court of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.” I’ve come back to this passage a lot in the last few years, but never more than Tuesday night, when reading a new ruling by Judge Matthew Kacsmaryk, the district judge who hears every civil case filed in the Amarillo division of the U.S. District Court for the Northern District of Texas. Citing some of my tweets and an amicus brief that I filed in the Supreme Court in a different Texas challenge to a Biden policy, the DOJ’s position is that, even if Amarillo might otherwise be an appropriate place for the lawsuit to be heard, Texas’ litigation behavior ought not to be rewarded—and so the case should be transferred to a different forum in which the judge to hear it would be randomly assigned. First, he dismissed the evidence of Texas’ behavior as “an amicus brief filed by a professor with a Twitter account.” Leaving aside that the amicus brief to which he’s referring, once again, was filed in a different court in a different case, this clumsy attempt at a burn never comes close to addressing the substance of my trifling little tweets. But Kacsmaryk’s behavior reinforces just as powerfully the other part of Farnsworth’s warning—that those who acquit judges “of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.” Judges ought to be above this; that they keep showing us the many ways in which they’re not is a big part of why public faith in the judiciary has been eroding so significantly in recent years—far bigger than the efforts of “a professor with a Twitter account.”