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An ultrapartisan federal judge issued a stunning and possibly unprecedented order on Monday that simultaneously violated the rights of vulnerable children and the lawyers trying to protect them. At the Trump administration’s bidding, U.S. District Judge Reed O’Connor—who sits in Texas—commanded Rhode Island Hospital to give him sensitive information about minors who received gender-affirming care, including their private medical records and Social Security numbers. He then issued an injunction claiming to prohibit the hospital from seeking relief in the federal courts that oversee Rhode Island under threat of contempt. And he barred the hospital from “aiding and abetting” any other party that might ask for help from these courts, including the children whose rights will be trampled by disclosure of their records.
O’Connor’s order is an extreme abuse of power that verges on impeachable misconduct. He has absolutely no authority to prevent any party from seeking relief in another court, let alone the home courts with natural jurisdiction over this dispute. Nor may he gag any litigant from “aiding and abetting” others who wish to make their case in those courts; these prohibitions read more like the diktat of an autocrat than the lawful directive of a jurist. O’Connor’s massive overreach seems designed to tee up a constitutional crisis over the ability of MAGA judges to facilitate the administration’s persecution of blue-state residents many miles away. It also tests the resolve of judges in those blue states to hold the line against distant conservative courts attempting to encroach upon their constitutional authority at the president’s behest.
The Trump administration set off this conflict when it issued a subpoena seeking to compel Rhode Island Hospital to turn over a mountain of information about transgender minors whom it had treated. This demand was part of a nationwide assault on doctors who offer gender-affirming care, and seven courts had already blocked similar subpoenas issued against other providers. The basic problem, as these courts identified, is that the government failed to accuse these doctors of any plausibly unlawful conduct, rendering the subpoenas invalid. When the Justice Department took aim at RIH, however, it sought to enforce its subpoena not in the Rhode Island federal courthouse. Instead, it went to O’Connor’s court, in Fort Worth, Texas, and asked him for an order to enforce the subpoena. (O’Connor, a far-right partisan, invites Republicans to shop their cases to his court.) He complied without even allowing RIH the opportunity to respond, directing the hospital to give the government the records it sought.
RIH, joined by Rhode Island’s Office of the Child Advocate (a state agency), then asked for the federal court in Rhode Island to quash the subpoena. On Wednesday, Judge Mary S. McElroy of the state’s U.S. District Court did just that. McElroy for “appalling” and “reckless disregard for the duty of candor” while calling out O’Connor for playing along with the department’s brazen judge shopping. Most important, she outmaneuvered the Texas judge by quashing the subpoena itself, finding that it was an illegitimate and unconstitutional invasion of privacy. By rendering the subpoena a nullity, McElroy left O’Connor nothing to enforce, making his earlier order toothless.
On Monday, however, O’Connor struck back with a shocking order that used wildly inappropriate intimidation tactics to wrest back control of the case. In a testy opinion, he rejected the conclusion reached by McElroy (and seven other courts) that the subpoena is invalid, as well as repeated accusations against RIH that McElroy had found to be “deceptive, if not intentionally and knowingly false.” He decried RIH’s pleas for relief in Rhode Island’s federal court as “flagrant attempts to avoid compliance with lawful orders” designed to “circumvent the authority of this court.” And he ordered RIH to give him all the documents demanded by the government’s subpoena by Tuesday, implying that the hospital might destroy these records if he did not obtain them immediately.
In reality, RIH had every right to ask McElroy for relief. Indeed, the hospital’s attempt to litigate this case in Rhode Island—where it is located—is far more defensible than the DOJ’s efforts to drag the fight to Fort Worth, 1,750 miles away. Yet O’Connor condemned RIH’s move as an underhanded gambit to “circumvent” his authority, as though he alone had a claim to litigate this dispute and McElroy was an impudent interloper. Only a judge drunk on unaccountable power could mistake a party’s right to petition its own courts for a gross act of defiance.
And that’s not even the most galling part. O’Connor then imposed a sweeping gag order that sought to prevent RIH—or any other interested party—from continuing to litigate before McElroy or the court that oversees her, the 1st U.S. Circuit Court of Appeals. “RIH,” he wrote, “is hereby ENJOINED from seeking relief, encouraging others to seek relief, or cooperate with others in seeking relief from any other court related to these proceedings, and from aiding and abetting others or encouraging others from seeking relief” from McElroy or the 1st Circuit. The hospital, he declared, may seek relief exclusively from his court; the notoriously conservative 5th U.S. Circuit Court of Appeals, which sits above O’Connor; or the Supreme Court.
With this dictate, O’Connor has crossed the line from aggressive judging to lawless despotism. His order marks a direct attempt to usurp authority from the federal courts that oversee Rhode Island, seizing from them the power to adjudicate a case on their home turf. Arguably worse, he tries to stop RIH from “aiding,” “abetting,” or “encouraging” anyone else from asking these courts for help, reaching far beyond the hospital to infringe upon the rights of nonparties. His chief aim, it seems, is to block the Child Advocate from picking up the baton and requesting relief in Rhode Island’s federal courts. That alone exceeds the limits of his jurisdiction. But O’Connor goes even further, barring RIH from “encouraging” individuals who are not currently part of the case to seek protection from these courts. That includes the individual doctors targeted by the subpoena, as well as the patients (and their parents), whose fundamental right to privacy is on the line.
O’Connor can do no such thing. It is, in fact, difficult to tally all the ways in which this gag order is unlawful. It violates the First Amendment rights of RIH to freely associate with others in its legal battle against this subpoena. By extension, it infringes upon the First Amendment rights of doctors, patients, and parents to band together with RIH to defend their mutual interests. And it undermines Rhode Island’s sovereign authority to defend its laws and institutions through an official state agency, the Child Advocate.
Most obviously, O’Connor’s order seeks to exercise jurisdiction that he simply doesn’t have. A federal court in Texas may not stop a federal court in Rhode Island from adjudicating a case by issuing a glorified restraining order against the parties. It cannot reach far beyond state lines to prevent those parties from litigating their grievances in a different, more appropriate venue. Neither the Constitution nor any statute comes close to awarding O’Connor, or any other judge, this power. He has, in effect, issued a kind of nationwide injunction—which just last year—except against other courts instead of the executive branch. The federal judiciary’s geographic division of lower courts rests on the requirement that judges operate within their jurisdiction. By rejecting this basic rule, O’Connor has not merely made an error of judgment; he has breached the constitutional command to maintain “good behavior” on the bench. A functioning Congress would investigate whether he has so grievously violated his oath as to merit impeachment.
Thankfully, the Rhode Island Child Advocate appears uncowed by this barrage of threats. On Monday, it to the 1st Circuit asking the court to block RIH from handing over the private patient records to O’Connor before his Tuesday deadline. It denounces the judge’s “attempts to strip RIH of its ability to participate in these proceedings, and, by extension, to sever this court from the party whose rights are directly at stake.” And it asserts, correctly, that the 1st Circuit must promptly intervene “to protect its own appellate jurisdiction and the rights of the parties before it.” The left-leaning circuit court is likely to agree—at which point O’Connor may retaliate further. He is evidently eager to escalate this skirmish into full-on judicial warfare over his self-proclaimed right to rule over Rhode Island, its citizens, and its federal courts. At stake is the prerogative of uncaptured judges to enforce the law free from interference by robed partisans halfway across the country.
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