Welcome to the FedSoc Twelve, a Balls & Strikes series about some of Donald Trump’s most unhinged judicial appointees. These judges, whether in their legal opinions or their off-the-clock conduct, have continued to push Trump’s agenda from the bench, forming something of a life-tenured Originalism Caucus within the federal judiciary. This summer, we’ll be checking in on these men and women now that they’ve gotten a chance to spread their wings during the Biden administration—and as they fight to be first in line for a Supreme promotion the next time Republicans control the White House.
The Résumé
Brantley Starr came up in Texas, graduating from a Christian college in Abilene and the University of Texas School of Law, where he joined (drumroll please) the local chapter of the Federalist Society. Don’t let the fact that a sitting federal judge is named “Brantley” distract you from his last name: He is the nephew of Ken Starr, the former special counsel who worked alongside Brett Kavanaugh to breathlessly report on the sexual misconduct of President Bill Clinton, and then, as president of Baylor University, utterly failed to protect Baylor University’s students from sexual assault. (Kavanaugh, to the best of my knowledge, was uninvolved in that chapter of Starr’s career.)
Given that he joined Trump’s legal team in 2020 to defend him during his Senate impeachment trial, Starr may have only avoided indictment in Georgia because he died last year.
Ken Starr’s uncle magic and connections to powerful Republicans in the conservative legal movement paid off for young Brantley. After graduation, he was able to spend nearly his entire career in the soft embrace of right-wing state government offices: He worked for two different Texas Supreme Court justices (including The Posting Justice, Don Willett, whom Trump later put on the Fifth Circuit) and worked his way through the ranks of the Texas Attorney General’s office. That’s where Brantley was when Trump appointed him to serve on the District Court for the Northern District of Texas in 2019.
Starr speaking at a Federalist Society event in 2017 (Screencap via YouTube)
The Opinions
The Northern District of Texas is a premiere venue for judge-shopping, which is when parties try to file cases in specific courts to get their preferred judge. That’s because this particular court, unlike most federal courts, assigns judges to specific geographic areas. For example, nearly all cases in Amarillo are assigned to Matthew Kacsmaryk, an anti-abortion crusader whose decision “suspending” FDA approval of a drug commonly used in medication abortion was recently upheld in part by the Fifth Circuit. About half of all cases in Fort Worth are assigned to Reed O’Connor, who has repealed Obamacare from the bench an estimated 7,000 times, only to be overruled by the Fifth Circuit or the Supreme Court.
Unlike those lucky judges, Brantley was assigned to Dallas, where he only has a 1-in-8 chance of getting assigned any given case. This means that when he gets the type of culture war-adjacent case that Trump judges crave, he really needs to let his freak flag fly to stand out. For example, in a case from earlier this year, a Texas company fired an executive after he refused on religious grounds to get the COVID-19 vaccine. After the executive was hired by a company in the same field, his old company sued to enforce his non-compete agreement.
Non-competes are increasingly controversial, and Texas law allows judges to refuse to enforce them in many cases, which is what Brantley did—but only after starting his opinion with a rant about the mistreatment of religious Americans at the hands of heathens everywhere. “At a legal conference three years ago, a professor pulled me aside,” he wrote. “He confided that he was an atheist, he knew I believed in God, but he wanted to apologize for the treatment people of faith in America are receiving.”
Brantley continued: “I didn’t fully know what he meant. I do now. Religious discrimination in modern America is becoming socially acceptable. But it is legally intolerable.”
It’s bizarre enough for Brantley to get on his soapbox like this over a contract dispute. But he went further, citing in a footnote to a speech Justice Samuel Alito gave at a Federalist Society event in 2020. Among other things, in that speech, Alito complained that “for many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry.” One reason “many” people may think that is because Alito frequently votes to invoke religious liberty to excuse rank bigotry.
Brantley has also dipped his toe in transphobia: Back when he worked at the Texas Attorney General’s Office, he was involved in numerous cases where Texas sought to roll back the rights of gay and transgender people. So when a trans woman filed a lawsuit in 2019 against Dallas County, Texas, alleging that their jails discriminated against trans people, and Brantley was assigned to the case, she filed a motion for a different judge, arguing that his work on behalf of an anti-trans client would lead to him not taking her claim seriously. The defendants didn’t even oppose her motion.
But Brantley rejected it anyway. In a 10-page opinion that studiously refused to refer to her with female pronouns, he whined that his past advocacy didn’t mean he wouldn’t be fair in this case. She was right to be worried: A few months later, he dismissed her case, which claimed that Dallas County jails subject transgender inmates to humiliating strip searches that cis people aren’t subject to.
The Weird Shit
As a judge, Brantley is most famous for ordering attorneys for Southwest Airlines to attend a class put on by an anti-LGBTQ hate group, the Alliance Defending Freedom. Brantley did so to punish Southwest’s lawyers for their supposed intransigence at the tail end of a long, incredibly stupid case.
In 2017, a group of Southwest flight attendants took paid time off to protest Trump’s inauguration at the Women’s March in Washington, D.C. They posted pictures on Facebook and wrote about the march in their union’s newsletter. This incensed Charlene Carter, an anti-choice flight attendant, who felt that attending a march sponsored in part by Planned Parenthood meant that the union was promoting abortion. Carter expressed her displeasure on social media, and by trying to organize a union recall election—and also by sending Facebook messages to her local union officer that included graphic videos of abortion.
Shortly thereafter, Southwest fired her for harassing her coworkers with her “grossly offensive” conduct. So Carter filed suit, framing her extremely off-putting behavior as a matter of religious freedom. Southwest tried to get the case tossed several times, but Brantley refused. He held that a reasonable jury could decide that Southwest fired Carter for being pro-life or for sending furious, unhinged screeds to her coworkers—it just wasn’t clear!—and scheduled the case for trial. Sure enough, in 2022, a Texas jury found that Southwest and Carter’s union discriminated against her because of her religion, granting her over $4 million in damages. Brantley knocked that number down to a mere $810,000, but ordered Southwest to rehire Carter and put out a boilerplate statement about nondiscrimination.
It’s bad enough to for Brantley to help an aggrieved anti-choice weirdo turn their prolonged campaign of harassment into protected religious speech and a lucrative payday. But here’s where things get really dumb: Southwest’s mandatory notice to their employees said that they “do not” discriminate on the basis of religion, rather than that they “can not.” Southwest also used the occasion to remind employees not to, for example, send page-long political rants to each other outside of work. Charlene immediately filed for sanctions, claiming that Southwest was failing to comply with Brantley’s judgment.
Brantley agreed, chiding Southwest for its grammar and ordering the airline to issue a new notice. But he also determined that Southwest needed more training on religious freedom to prevent them from breaking the law in the future. Thus, he ordered three Southwest lawyers to take training on the subject—and specifically ordered Southwest to fly an ADF representative to Dallas to lead it.
This was a weird order for a lot of reasons. First, it’s bizarre to order anyone to take a “class” on a contentious, evolving area of law from an organization that’s clearly on one side of that fight. That’s not legal training; that’s indoctrination. But second, it was especially strange that the ADF—which wasn’t representing anyone in the case, let alone a party to it—was suddenly involved at all. How did Brantley know that anyone from the ADF would even be willing to “teach” this “class”? As Chris Geidner concluded at The Law Dork, it appears that the ADF was first mentioned in this case only in this sanctions order, which raises the distinct possibility that a sitting federal judge is just bouncing ideas about his cases off his buddies at the ADF whenever he feels like it.
Southwest has since hired new lawyers, and, perhaps recognizing that the case was earning him the wrong kind of attention, Brantley recently stayed his order pending appeal—and then took it back, mocking Southwest for complaining. But even if Southwest’s lawyers are never forced to listen to ADF lawyers present a slide deck about how the Constitution proves there are only two genders, Brantley has established his bona fides: He’s willing to stuff his opinions with right-wing rants, fight right-wing culture wars from the bench, and work with fellow right-wing ideologues to infuse the law with his policy preferences. And he’s only 44 years old.
