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This is the first in a series of issue briefs describing structural reforms to U.S. federal courts, including the U.S. Supreme Court, that could be part of a broader package to build modern, fair courts that protect American democracy and all of our fundamental freedoms.

 

What is judge-shopping?

The term “judge-shopping” usually refers to a litigation tactic used by plaintiffs to handpick the judge they feel is most likely to rule in their favor. Currently, the most common judge-shopping tactic involves filing cases in subdivisions of judicial districts where only one or two judges could be assigned the case. This tactic takes advantage of the fact that there are few restrictions on where a case can be filed. It also takes advantage of the fact that some geographically large districts divide their work in such a way that a given judge can have a very high likelihood, if not a certainty or near certainty, of being assigned a case. For example, when planning their challenge to the availability of the abortion pill mifepristone in a case the court heard last term, the plaintiffs formed an organization in Amarillo, Texas – where the case was guaranteed to be heard by Judge Matthew Kacsmaryk. Recently, it was reported that the social media company X plans to amend its terms of service to require any federal court disputes involving the company be filed in the Northern District of Texas, despite the fact that X’s headquarters are in the Western District of Texas; the Fifth Circuit recently had to intervene to prevent Northern District Judge Reed O’Connor from abusing his discretion in X’s favor in a currently pending lawsuit. 

When combined with ideological judges being more willing to grant broad nationwide injunctive relief, judge-shopping threatens the fairness that federal courts must provide. A recent poll shows that 88 percent of Americans across the political spectrum believe judges should be randomly assigned to cases to prevent plaintiffs from handpicking judges for a favorable verdict.

 

How have the courts responded?

The federal judiciary has acknowledged the dangers of judge-shopping; in March of 2023, the Judicial Conference of the United States (the federal courts’ national administrative body) issued a policy advising judges in charge of all districts around the country to take steps to protect their courts by reviewing and, if needed, changing the processes by which they assign cases. Immediately, Republican Senators and their allies in the right wing legal movement started to pressure the courts not to take these steps, revealing how much they rely on judge-shopping to achieve their unpopular policy goals. Worse, this Republican and far-right pressure appears to have worked; recent reporting suggests that most chief judges in district courts have not acted in response to the Judicial Conference’s 2023 recommendation, and judge-shopping continues.

 

Can we solve this problem and what can Congress do?

The constitution explicitly gives Congress the power to “ordain and establish” lower federal courts (Art III, Sec. 1), and therefore a legislative response to the problem of judge-shopping is squarely in Congress’s power.

 

What types of cases are of concern?

One question to be considered when designing a legislative response to the problem of judge-shopping is what types of cases the policy seeks to cover. The effects of judge-shopping, though pernicious in all cases, are exacerbated when the impact of the decision in the case extends beyond the parties in the case. This likely explains why many of the reforms proposed so far focus on cases challenging federal laws or rules, or where the relief sought in the case would apply statewide or nationwide. 

For example, Rep. Sherrill’s End Judge Shopping Act of 2023 (H.R.3163) applies to “A civil action which seeks an order enforceable in each district and division of the United States”, and Sen. Hirono’s Stop Judge Shopping Act (S.1265) applies to “any civil action for declaratory or injunctive relief (including a nationwide injunction, stay, vacatur, or any other relief with similar nationwide force and effect) against the enforcement of any Federal law (including regulations and Executive orders) if the relief extends beyond the parties to the civil action.” Sen. Wyden and Rep. Ross’s Fair Courts Act of 2023 (S.1758/H.R.3652) apply to “(1) an interlocutory or permanent injunction restraining the Federal Government or a Federal officer with respect to any person other than the plaintiff; (2) any order that vacates a Federal regulation on a nationwide basis; and (3) a stay of execution of a judgment granting relief described in paragraph (1) or (2).” 

These are narrower categories than the cases covered by the Judicial Conference’s policy (which encompassed cases seeking orders with both nationwide and statewide effect), probably because these bills would impose stricter case assignment requirements, so a more narrowly targeted universe of affected cases was desired. 

 

What case assignment procedures are needed?

The other major element is how the bill would prevent judge-shopping. Rep. Sherrill’s bill is essentially a form of jurisdiction-channeling, providing that cases seeking nationwide injunctions “shall be brought only in a division of a judicial district which has two or more active judges assigned.” Sen. Hirono’s bill takes a similar approach, but channels the cases to a specific district, providing that “the United States District Court for the District of Columbia shall have original and exclusive jurisdiction” over cases seeking a nationwide injunction. Sen. Wyden and Rep. Ross’s bills would channel such cases to a three-judge panel under existing procedures that are used for, for example, campaign finance cases. 

 

What about a broader or indirect method?

Broader solutions are also available. For example, Leader Schumer’s End Judge Shopping Act (S. 4096) would write into statute the policy recommended by the Judicial Conference, directing each district court to examine and possibly amend its own case assignment policies. Sen. Wyden and Rep. Ross’s bills would provide more specific direction to courts in how to establish case assignment policies for all cases, essentially setting a floor that there must be at least 4 judges who could possibly be assigned any given case, with exceptions for criminal cases, habeas petitions, and other categories. Sen. McConnell’s SHOP Act (S. 4095) seeks to eliminate courts’ ability to issue any nationwide injunctions at all, regardless of the judge. 

Finally, it should be noted that because Congress can create as many new judgeships as it wants, it could, in theory, simply appoint sufficient numbers of new judges so that judge-shopping would become nearly impossible. This method would not be foolproof – in general, judgeships are assigned by district, so the courts are still left to use their own discretion on dividing case assignments in and among the divisions of each district. But it would likely lead to fewer single-judge or two-judge divisions in general.

 

Conclusion

While the federal judiciary acknowledges the problem of judge-shopping, the chances of the courts uniformly taking action to prevent it are remote. In these circumstances, Congress must step in, and it should ensure that its solution applies to an appropriate range of cases and requires a case assignment procedure that will ensure all parties receive fair treatment.  The courts’ legitimacy—and thus, their authority—requires nothing less.