The state’s Republican attorney general appears to strategically file key lawsuits in O’Connor’s jurisdiction, the Northern District of Texas, so that he will hear them. And on Friday, the judge handed Republicans another victory by striking down the Affordable Care Act, the signature health law of the Obama era.
O’Connor, who was appointed by former President George W. Bush, has been at the center of some of the most contentious and partisan cases involving federal power and states’ rights, and has sided with conservative leaders in previous challenges to the health law and against efforts to expand transgender rights.
No one questions his expertise on the law. But his rulings illustrate the ways in which the federal district courts have become politically weaponized, as Republicans and Democrats alike try to handpick judges they see as ideologically friendly to their cases.
In an interview in June with the legal-news website Law360, O’Connor said he approached all cases the same way. He had no comment on why the Texas attorney general, Ken Paxton, filed some of his major cases challenging Obama-era policies in Wichita Falls, Texas, where he is the only district judge who hears cases, and in Fort Worth, where he is the only district judge who is not semiretired.
But when asked about a former clerk who described him as a mainstream conservative and not a Trump-style conservative, the judge offered an explanation of his approach to the bench.
“All I’d prefer to say is I try to approach it based on the arguments of both sides presented,” the judge said to Law360. “And if it’s a statutory issue or a regulatory issue, to look at the text and follow the text that one of the other branches has put forward, consistent with the rules of interpretation put forward by the Circuit. I don’t know where that puts me on the spectrum, but that’s what I try to do.”
On Friday, O’Connor ruled that the Affordable Care Act’s individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’ tax power.” He called the mandate unconstitutional and the law’s remaining provisions invalid.
Paxton’s office did not respond to a request for comment.
Two decades ago, O’Connor — a native Houstonian who is married and has two daughters — was a Dallas-area federal prosecutor in his 30s. He had climbed up the legal ladder after trying local criminal cases as an assistant district attorney in Tarrant County, which includes part of Fort Worth. But his political and legal orbit changed in 2003.
He was tapped by the Justice Department to serve in Washington as counsel to the Senate Judiciary Committee, advising the Republican chairman at the time, Sen. Orrin Hatch of Utah, and drafting legislation on terrorism and sentencing reform. He provided behind-the-scenes legal guidance, and impressed the Republican ranks of senators, including the two who represented Texas at the time, John Cornyn and Kay Bailey Hutchison.
A few years later, in June 2007, few were surprised when Bush nominated him to become a federal judge in the Northern District of Texas. He was unanimously confirmed by the Senate that November.
In one of his first major rulings, in 2008, O’Connor dismissed a voting-rights lawsuit against the city of Farmers Branch, Texas, in which Hispanic residents claimed that the at-large system for City Council seats diluted the voting strength of minorities.
In August 2016, he blocked the Obama administration from enforcing guidelines intended to strengthen transgender rights. The administration had issued a letter to public schools stating that transgender students should be free to use bathrooms and locker rooms that match their gender identities, and that schools that refused to comply could lose federal funds. A Republican coalition of states, led by Texas, sued the administration, saying the administration overstepped its authority, and O’Connor agreed.
Just a few months after that ruling, the judge halted another Obama administration effort to protect transgender rights. Texas and other Republican-led states had filed a suit challenging rules that would ban doctors and hospitals from discriminating against transgender people. Social conservatives said the rules would force some doctors to act against their religious beliefs. O’Connor agreed, finding that the rules likely violated the Religious Freedom Restoration Act.
Conservatives have also been disappointed by some of his rulings, including one on immigration, a realm in which Democrats have often scored victories by turning to federal judges.
In 2013, O’Connor made a surprise turnaround from a previous decision saying the Obama administration had violated federal law in creating the Deferred Action for Childhood Arrivals program, which shields some young immigrants in the country without legal permission from deportation. But he stopped short of calling for an end to the program. A few months later, O’Connor ruled that his court did not have jurisdiction to decide the case.
Richard B. Roper III, a Dallas-area lawyer, said O’Connor’s high-profile rulings do not fully encapsulate his reputation on the bench as fair and evenhanded. Roper was the U.S. attorney for the Northern District of Texas and O’Connor’s colleague and then boss in that office.
“Obviously, he’s conservative, but I don’t see him being just an ideologue for the Republicans,” Roper said. “He holds the government to very high standards. I don’t see him being aligned with either side.”
Roper, a friend of O’Connor’s, said the judge had ruled against him a number of times in Northern District cases, and disputed the idea that partisanship had taken over the federal bench.
“Most of what federal judges do is not the exciting and titillating or provocative cases,” he said. “Most of what they do is really going in and calling balls and strikes. Most judges, I think, across the country do their best to divorce politics from their decisions, and I think Judge O’Connor would fit in that camp.”
This article originally appeared in The New York Times.