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Resigning Fifth Circuit Judge Fears Politicization of Judiciary

April 27, 2022, 8:45 AM

Judge Gregg Costa worries forum shopping and nationwide injunctions are contributing to a public perception of the federal judiciary as political as he prepares to resign from the U.S. Court of Appeals for the Fifth Circuit.

“I do fear that courts are becoming increasingly politicized, and there’s a sense—at least outside the courts—that judges are on teams or that people root for certain sides,” Costa said in an interview.

Costa, 49, plans to make the rare move to leave the federal bench in August to return to private practice. His resignation will cap a decade-long career as a judge that began with his appointment to the Southern District of Texas by Barack Obama.

Costa’s comments come as the frequency of nationwide injunctions, which allow a single judge to halt an action or policy, have increased in recent years and stopped initiatives of Republican and Democratic presidents alike.

Forum shopping is a tactic litigants use to get a judge who they hope will give them the result they want. It’s sometimes targeted at divisions of federal districts with a single judge so they know who will hear their challenge.

Bloomberg Law’s recent interview with Costa took place after a judge in Florida threw out the Biden administration’s federal mask mandate for transportation and before Texas Attorney General Ken Paxton challenged the rescission of a pandemic-era boarder policy that makes it easier to expel people crossing into the U.S. for public health reasons.

Some of the more popular divisions for those injunctions are in Costa’s home state of Texas, including the division of the Southern District where Paxton filed his latest request for an injunction and a division of the same court Costa once oversaw.

Costa began his judicial career as the only judge in the Southern District’s Galveston division. He took over in Galveston three years after a previous judge in that division was imprisoned and impeached in a sex misconduct-related scandal.

Being in a single-judge division, in addition to coming in after such a disruption, Costa said made him “attuned” to general mischief, including forum shopping, “that’s attached to having one federal judge who you know you’re going get assigned to the case you file,” Costa said.

In a 2018 Harvard Law Review article, Costa argued adopting three-judge district court panels in cases seeking nationwide injunctions and following those decisions with Supreme Court review could solve forum shopping issues.

Costa said he’s skeptical of action, however, given the difficulty for Congress to pass legislation.

Back to Advocacy

Costa’s decision to leave the judiciary means he’ll hang up his robe before he is eligible for senior status—a route most federal judges take that allows them to vacate their seat as an active judge while remaining involved in the work of the court.

But Costa said he wants to return to his roots as a lawyer. “I miss being an advocate,” he said. “I think I enjoy it more. I think I’m better at it.”

Costa graduated from the University of Texas School of Law and clerked for Chief Justice William Rehnquist and D.C. Circuit Judge A. Raymond Randolph. As an assistant U.S. attorney in the Southern District of Texas, he was co-lead counsel in prosecution of convicted ponzi-schemer Allen Stanford a decade ago. He also was an associate at Weil, Gotshal & Manges.

Obama appointed Costa to his district seat in 2012 and elevated him to the Fifth Circuit two years later. The Senate confirmed his nomination to the circuit 97-0.

Costa said he wants to do both trial and appellate work with a focus on the trial side. With experience as a judge at the district and circuit level, Costa said he sees himself as someone who could come into various types of cases and give the kind of generalist perspective that the judge and jury an advocate is trying to persuade would also have.

“You just sort of know in your heart what you’re most comfortable and most excited about doing, and I love mixing it up in court and advocating for a position and trying to get a favorable result,” Costa said.

Fifth Circuit

Costa is one of the few Democratic appointees on the conservative-leaning Fifth Circuit, which covers Louisiana, Mississippi, and Texas. When asked what it’s like to be one of the court’s few Democratic appointees, Costa noted that most cases are decided unanimously but said dissenting isn’t ideal.

“I will say it’s not fun when you have to write a dissent when your cases get essentially reversed by the en banc court, but you put your view of the law out there, and you can’t really control how it’s going to come out at the end of the day,” Costa said.

One such case in which Costa dissented was taken up by the Supreme Court for review in February in a consolidated bundle of challenges to the constitutionality of the Indian Child Welfare Act, which protects Native American families from separation. That case is Haaland v. Brackeen.

In its 2021 decision, the Fifth Circuit held parts of the law constitutional and others unconstitutional. Costa wrote sharply in dissent from his colleagues in his partial dissent, pointing to the “irony” that the federal court’s decision wouldn’t have a binding effect on state adoption proceedings and calling it “an advisory opinion.”

Costa cited that case and voting rights cases he’s worked on as a few of the more high-profile disputes during his circuit court career. “Some of those dissents, even though they’re defeats, are issues you feel strongly about,” Costa said.

Moving On

Two things Costa said he’ll miss the most about being a federal judge are the mentoring relationships he’s built with law clerks and the public service aspect of judging.

Both are elements that have been important to Costa throughout his career. Before he attended law school, Costa taught third and fourth grade in Mississippi as part of Teach for America.

Although federal judgeships are lifetime appointments, Costa said he doesn’t think “life tenure is a life sentence.”

“Someone will replace me. Will they be just like me? Of course not,” Costa said. “But that’s good. They’ll bring their own talents and experience and perspective.”

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com