Critics claim that O'Connor has become a "go-to" favorite for conservative lawyers, as he reliably rules against Democratic policies and for Republican policies.[1][2]Attorneys General in Texas appear to strategically file cases in O'Connor's jurisdiction so that he will hear them.[3]
O'Connor has widely been described as conservative.[7][8][9][10] He has long been active in the Federalist Society, and is a contributor who has frequently spoken at the organization's events in Texas.[11] According to his critics, O'Connor has become a "go-to" favorite for conservative lawyers, because, they claim, he reliably rules against Democratic policies and for Republican policies.[1][2] Attorneys General in Texas appear to strategically file cases in O'Connor's jurisdiction so that he will hear them.[3]
On February 11, 2015, O'Connor held that a portion of the federal Gun Control Act of 1968 was unconstitutional.[12] This ruling was reversed on appeal.[13]
On August 21, 2016, O'Connor issued a ruling against the Obama administration dealing with the government's interpretation of Title IX rules. The guidance from the White House was issued in May 2016, and addresses the Title IX requirement that schools receiving federal funding not discriminate against students on the basis of sex. The ruling required that transgender students be allowed to use the bathroom that corresponds to their gender identity. O'Connor ruled that the new guidelines did not receive proper notice and comment prior to publication, and that Title IX and its implementing regulation are "not ambiguous" as to the "plain meaning of the term sex as used". He then issued a nationwide injunction preventing them from being enforced with respect to students' access to "intimate facilities."[16] The Obama administration appealed the decision, but the Trump administration rescinded the guidance and moved to dismiss the appeal.[17][18]
On December 31, 2016, in a separate case, O'Connor issued a preliminary injunction against enforcement of the Obama administration's regulations implementing Section 1557 of the Affordable Care Act (prohibiting sex discrimination in federally funded health programs) as a likely violation of the Religious Freedom Restoration Act and what he said was an improper inclusion of gender identity discrimination.[19]
In early 2018, O'Connor held the Certification Rule of the Affordable Care Act unconstitutional in Texas v. Commissioner of Internal Revenue, finding it violated the nondelegation doctrine.[20] This ruling was reversed on appeal.[21]
In 2018, O'Connor ruled that the Indian Child Welfare Act was unconstitutional.[22] The Fifth Circuit reversed O'Connor's ruling on appeal, and the reversal was upheld by the Supreme Court in Haaland v. Brackeen (2023).[23]
On October 31, 2021, O'Connor ruled that the First Amendment and the Religious Freedom Restoration Act provide religious employers an exemption from Title VII of the Civil Rights Act's ban on discrimination "on the basis of...sex".[24][25]
In 2022, O'Connor issued a preliminary injunction blocking the Pentagon from enforcing a COVID-19 vaccine requirement for its Navy Seals. O'Connor said the U.S. government had "no license" to abrogate the freedoms of the Navy SEALs.[26] The preliminary injunction was partially stayed by the Supreme Court on March 25, 2022.[27]
In October 2022, O'Connor ruled that the Boeing Company committed criminal acts when not disclosing the MCAS system of the FAA. This contradicted the previous settlement the federal government made with Boeing, and opened the door for new legal action by victims families.[28]
In VanDerStok v. Garland (2023), O'Connor issued a nationwide injunction blocking a rule issued in 2022 by the ATF that classified receiver blanks as "firearms" or firearm "frames or receivers" within the meaning of the Gun Control Act.[29][30] By classifying receiver blanks as firearms, the ATF rule required such receiver blanks to have serial numbers, required manufacturers of such receiver blanks to be licensed, and required commercial sellers to conduct background checks for purchasers.[29][30] O'Connor determined that the ATF rule exceeded the agency's authority, ruling that receiver blanks were not firearms or firearm receivers.[29] The U.S. has appealed to the Fifth Circuit,[29] and O'Connor's injunction was administratively stayed by the U.S. Supreme Court pending further proceedings.[31][32]
In an act criticized as an example of forum shopping, Elon Musk's website X (Twitter) filed two lawsuits in O'Connor's court division although neither it nor the defendants are located in Texas.[33] Judge O'Connor drew additional scrutiny after published reports revealed that he owned stock in Tesla, another company run by Musk.[34] On August 13, 2024, Judge O'Connor recused himself from one of those cases — the lawsuit against the World Federation of Advertisers.[35]
On December 14, 2018, O'Connor ruled that the Affordable Care Act was unconstitutional.[36][37] O'Connor ruled that the individual mandate was unconstitutional by 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."[36][38] This is in reference to National Federation of Independent Business v. Sebelius (2012) which ruled that the individual mandate was constitutional because of the tax penalty. The penalty was reduced to $0 by the 2017 tax bill starting in 2019.[39] The ruling was deemed likely to be appealed, with both Republican and Democratic legal experts saying that the legal challenge to the Affordable Care Act was unlikely to succeed.[36][40][41][42][43] The Affordable Care Act would remain in effect throughout the appeals process.[43][36] President Donald Trump commended the ruling on Twitter.[44][45][46]
Legal experts who both support and oppose the Affordable Care Act harshly criticized O'Connor's ruling, with The Washington Post noting that legal scholars considered O'Connor's ruling "as a tortured effort to rewrite not just the law but congressional history."[40] Ted Frank, director of litigation at the conservative Competitive Enterprise Institute said the ruling was "embarrassingly bad."[40] Nicholas Bagley said O'Connor's ruling was "about as naked a piece of judicial activism as I have ever seen; I don't even think it's close."[40]Jonathan H. Adler and Abbe R. Gluck, who were on opposing sides of the 2012 and 2015 Supreme Court challenges to the Affordable Care Act, wrote a joint opinion editorial in The New York Times where they described the ruling as "lawless", "a mockery of the rule of law and basic principles of democracy" and "an exercise of raw judicial power."[47][48]
In Braidwood Management Inc., et. al. v. Xavier Becerra, et. al., on March 30, 2023, O'Connor sided with conservative employers and individuals in Texas who argued that the Affordable Care Act's provision mandating that businesses provide their employees with free coverage of preventative services including mammograms, colonoscopies, mental health screenings, and the HIV prevention drug PrEP was unconstitutional.[50] Coverage recommendations are driven by the volunteer U.S. Preventive Services Task Force; O'Connor ruled that enforcing these recommendations was "unlawful" and violated the Appointments Clause of the U.S. Constitution.[51] He also wrote that the coverage requirements violate employers' religious beliefs "by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman."[52]
^State of Texas, et. al. v. United States of America, et. al., .4:20-cv-00283-O (UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, WICHITA FALLS DIVISION August 4, 2016).
^Stephen Breyer (majority opinion), Clarence Thomas (concurring opinion with the majority), and Samuel Alito (dissenting opinion) (June 17, 2021). "California et al, petitioners v. Texas, et al (Case 19–840)"(PDF). The Supreme Court of the United States.{{cite web}}: CS1 maint: multiple names: authors list (link)
^Braidwood Management Inc., et. al. v. Xavier Becerra, et. al., .4:20-cv-00283-O (United States District Court Northern District of Texas Fort Worth Division March 30, 2023).
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