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Leaders of the federal court system and some members of Congress are trying to limit the practice of judge shopping — when a person or group files a lawsuit in a carefully chosen court where they believe the judge will be inclined to rule in their favor.
But none of the proposed changes seem within reach.
A Democratic bill introduced this spring would require cases to be randomly assigned among all judges within a federal court district, even if the suit is filed in a courthouse that has only one judge. A Republican bill would limit when judges can block policies nationwide. Guidance issued in March by the policymaking body that oversees the courts said cases with statewide or nationwide implications should be assigned randomly.
Neither the Democratic nor Republican legislation seems likely to advance in a polarized Congress, however. And the policymaking body’s guidance was greeted with hostility in court chambers, with chief judges saying it is up to them to decide case-assignment procedures.
In the meantime, conservative judges who appear to have been intentionally chosen by plaintiffs continue to act in high-profile cases, blocking Biden administration rules to protect transgender students and to require background checks for gun-show purchases, among other decisions. Liberal judges who seemed to have been targeted by Democratic attorneys general did some of the same during the Trump administration, including on immigration policy.
“Any practice that allows litigants to manipulate the court in a way that makes the court look like they are simply doing the bidding of one side of the ideological spectrum — that’s just not something the court should abide,” said Steve Vladeck, a professor at Georgetown University Law Center who has written extensively about the issue.
He and other legal experts said chief judges must work to ensure that the public trust the courts to be fair and neutral. A few judicial districts have taken steps to address the issue in their own way, eliminating single-judge divisions or creating new rules for some cases.
“This is going to play out probably fairly messily,” said Russell Wheeler of the Brookings Institution. “And you’re gonna see, as you see in a lot of other things, there’s just great variation in the federal courts.”
The history of judge shopping
Judge shopping drew national attention in 2021 because of the large concentration of patent cases — nearly a quarter — being filed in the Waco federal courthouse in the Western District of Texas, where Alan Albright is the sole judge.
Patent plaintiffs found a number of Albright’s policies attractive, including his accelerated trial schedule and decision to rarely transfer cases outside the district, according to a 2020 patent litigation study.
In 2021, Sen. Thom Tillis (R-N.C.) and then-senator Patrick J. Leahy (D-Vt.) wrote to Chief Justice John G. Roberts Jr. asking for reforms. Weeks later, Roberts, who oversees the Judicial Conference, called for the study of judicial assignment practices in patent cases.
After the fall of Roe v. Wade in 2022, an antiabortion group chose a rural Texas courthouse to challenge the federal government’s approval of a key abortion drug. The only judge in that courthouse, Matthew J. Kacsmaryk, is known for his long-held antiabortion beliefs.
Republican officials and conservative groups have also used single-judge divisions — which contain just one courthouse and only one active federal judge — to challenge Biden administration policies on LGBTQ+ rights, immigration and gun control, among other hot-button issues.
At the same time, federal judges in Alabama found that attorneys at major LGBTQ+ rights groups and law firms, including the American Civil Liberties Union, engaged in judge shopping when challenging the state’s ban on gender-affirming care for transgender minors, according to a report unsealed in March.
The lawyers filed lawsuits in the Northern and Middle districts of Alabama in 2022, then voluntarily dismissed their cases when they were not assigned to a judge they thought would be sympathetic. The lawyers “purposefully attempted to circumvent the random case assignment procedures,” the report said.
In an address to the Midland County Bar Association, Judge James C. Ho of the U.S. Court of Appeals for the 5th Circuit, said liberal and conservative litigants alike use judge shopping to “zealously advocate for their clients.”
“Let’s not pretend that strategic thinking about venue selection is the exclusive province of one type of litigant or one end of the political spectrum,” Ho said. “It happens regardless of who controls the government — or who controls the lawsuit.”
But Vladeck said the practice is far more common among conservative activists and officials, in part because single-judge courthouses are overwhelmingly located in sparsely populated parts of red states whose judicial appointees are more conservative.
Vladeck has tracked at least 46 Texas lawsuits challenging Biden administration policies in the state’s district courts. All were filed in courthouses where there is a 95 percent chance or greater of drawing a Republican appointee. Half were filed in courthouses where the challengers were guaranteed to get their case before a particular judge.
Proposals to address judge shopping
In March, the Judicial Conference asked courts to randomly assign cases that have statewide or nationwide implications throughout an entire judicial district, instead of within a smaller division or courthouse.
“Public confidence in the case assignment process requires transparency,” the body’s Court Administration and Case Management Committee wrote, suggesting that each federal district post their case assignment rules on their websites and “avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge” unless there is a reason for a case to be heard in a specific location.
But the conference’s random case assignment policy is nonbinding. The group would have to use its formal rulemaking process to create binding case assignment practices for all courts, experts said. Otherwise, authority rests with the judges of each district, according to federal statute.
Once that reality became clear, Senate Majority Leader Charles E. Schumer (D-N.Y.) — along with more than three dozen other Democrats — introduced legislation that would codify the conference’s random case assignment policy into law.
“The American people need to believe in the fairness of our judicial branch, and this legislation would move our legal system in the right direction,” Schumer said in April. “We can’t let unelected judges thrash our democracy.”
That same day, Senate Minority Leader Mitch McConnell (R-Ky.) introduced a bill that would limit the authority of district courts to provide injunctive relief only to the parties involved in a particular lawsuit, or others who are “similarly situated” and located in the same judicial district. The bill would also sanction lawyers accused of judge shopping and set new limits on where patent and bankruptcy cases can be filed.
Neither bill has advanced.
Several federal judges were unwilling to answer questions about judge shopping, with one saying the issue has become “highly politicized.” Those who did speak expressed concerns about the legislation and how the random case assignment policy would impact their work — especially in a large state like Texas, where courthouses are far apart and judges would have to travel to the courthouse where a lawsuit was filed if that case was randomly assigned to them.
“Mandating something like this that would require judges to travel 500 miles or 400 miles to a different duty station and listen to a month-long or two-month-long trial is just not how we manage our docket or our taxpayer expenses,” said Chief Judge Randy Crane of the Southern District of Texas, which has one single-judge courthouse — in Galveston — and decided in May not to adopt the guidance on random case assignments.
“I believe our court runs efficiently as is,” Crane said. “I don’t think that that policy would make us more efficient.”
He separately expressed concerns about McConnell’s bill to limit the authority of judges to issue nationwide injunctions, saying it would seriously affect how judges handle more mundane cases as well as high-profile ones.
“Everybody’s kind of focused on these cases dealing with immigration and abortion,” Crane said. “It seems as though maybe these bills are well-intentioned, but there’s not a real, full understanding of the complete consequences of their effects on regular, typical litigation in the federal courts.”
Retired Texas federal judge W. Royal Furgeson Jr. said random case assignment would also be very challenging in the Northern and Western districts of Texas. “It’s easy to say, ‘Yes, let’s just have all these judges moving around, week by week, from Dallas to San Angelo and from Waco to El Paso and so forth,’” he said. “But on the ground, not impossible, but it’s incredibly disruptive.”
In the Northern District, Kacsmaryk, Reed O’Connor and Wes Hendrix are the only judges in their divisions. Kacsmaryk suspended the Food and Drug Administration’s approval of mifepristone, blocked the Biden administration from ending the Trump-era “Remain in Mexico” program and struck down two Biden administration protections for transgender people. The mifepristone decision was overturned on appeal.
Making their own changes
Current and retired federal judges say they know their districts best and that the judiciary will sort itself out. This happened in the Southern District of Texas, the Western District of Texas and the Western District of Louisiana.
There used to be two single-judge divisions in the Southern District of Texas. In Victoria, Tex., U.S. District Judge Drew B. Tipton received all civil and criminal cases, including several high-stakes immigration cases. Like Kacsmaryk’s, Tipton’s rulings have been wins for the right.
But in 2023, Tipton was transferred to the Houston Division and two judges in Corpus Christi picked up his Victoria cases. While Crane, the chief judge, said the transfer was not in response to judge-shopping complaints, the move ended one of the most significant hubs for the practice in the state.
In Galveston, the other single-judge division in the district, Judge Jeffrey V. Brown acknowledged in a statement that “judge-shopping is an issue of concern.” His chambers said he issued an order in December that plaintiffs must explain their case’s connection to Galveston if there is no obvious “factual nexus.” The court will then decide if the case should be transferred elsewhere.
Crane said there has been no case filed in Galveston seeking nationwide relief on any issue since Brown put the new procedure in place.
In the Western District of Texas, the number of patent cases declined by about 41 percent in 2023 after the chief judge directed them to be randomly assigned — a response to Roberts’s concerns.
In Louisiana, Terry A. Doughty used to be the only judge in his courthouse in Monroe. In 2023, two other judges started taking some cases filed there following concerns about judge shopping, though Doughty — the chief judge of the Western District — still handles about 70 percent.
Judges in the district decided not to adopt the random case assignment policy because each division now has more than one judge, Doughty said. In 2023, he blocked the federal government from communicating with social media companies — a decision rejected by the Supreme Court this summer on procedural grounds.
In the Lake Charles Division of the district, Judge James D. Cain Jr. hears 90 percent of civil cases filed, while Judge David C. Joseph only hears 10 percent. A Trump appointee with a history of upending Biden’s climate goals, Cain in July blocked the administration’s pause on approving new facilities that export liquefied natural gas.
The government had asked Cain to dismiss the case for lack of jurisdiction.