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Forum-Shopping_ The Dubious Practice that Allows Litigants to Choose Their Judges.pdf (78.16 kB)

Forum-Shopping: The Dubious Practice that Allows Litigants to Choose Their Judges

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posted on 2024-05-17, 14:47 authored by Zachary Brown

While the Supreme Court assumes most of the media and general public’s attention, district and appellate court judges still have an extraordinary amount of power to shape the direction of American law. As we’ve seen more and more in recent years, lower court judges are capable of making decisions with nationwide impact [1]. This makes the procedures surrounding the selection of judges and their assignment to controversial cases all the more important. One such procedural practice that’s been increasingly scrutinized in the past couple of years is “forum shopping,” where litigants will file lawsuits in single-judge divisions in hopes of getting a more receptive judge. This tactic has been used extensively by conservative attorneys general and legal advocacy groups to notch key victories against the Biden administration [2]. In its current form, forum shopping or “judge shopping” allows plaintiffs to choose the judges most likely to favor their side, depriving the defendants of a fair hearing and removing the case from the district most relevant to the fact pattern at issue. The random nature of judge selection in most district courts compared to the predictability of the single-judge division model makes impartiality a region-specific benefit instead of a nationwide standard.

The egregious consequences of forum shopping have led to denunciations of the practice and calls for reform [3][4]. Even Chief Justice John Roberts offered a degree of skepticism in his 2021 Year-End Report on the Federal Judiciary [5]. The Judicial Conference of the United States, a government institution that creates policies for federal courts, responded by issuing a new rule aimed at minimizing the potential for judge shopping in district courts. Under the new policy, litigation that seeks to impede or abrogate state or federal action would be subject to a “district-wide random selection process” [6]. Essentially, plaintiffs wouldn’t be able to seek injunctive relief with national implications through a judge selected for that purpose. Case assignments in single-judge divisions would be randomized, and plaintiffs would be rendered incapable of preconfiguring the outcome.

While the new policy represents an incredibly important step, it has more than its share of detractors and limitations. Senate Minority Leader Mitch McConnell (R-KY) and other prominent Republicans have criticized the policy and urged district courts to ignore it [7]. Judges in rural areas have raised concerns over how a randomized selection process would work in lightly populated districts with large distances between offices [8]. While some worry that the proposed rule goes too far in its reach, others conclude that institutional factors beyond the Judicial Conference’s control–such as the ideological composition of district and appellate courts–weaken the new rule’s ability to follow through on its promises of impartiality and renewed public confidence [9].

While the full impact of the Judicial Conference’s requirement has yet to be determined, it could not have come at a more prescient time. More than a dozen filings in single-judge divisions have been made against the Biden administration on immigration policy alone[10]. Judge Matthew Kacsmaryk, a district judge for the Northern District of Texas notorious for judge shopping [11], issued a preliminary injunction against the use of mifepristone with far-reaching, disastrous ramifications [12]. The Supreme Court granted a request for a stay only undid the damage temporarily [13], and the ultimate fate of medical abortions has yet to be decided. 

Immigration and abortion are just two of the many hot-button issues decided in single-judge divisions. The current design of the federal courts allows for plaintiffs to reserve, in advance, judges that align with their ideological leanings. The unchecked power of these judges then allows for preliminary injunctions and declaratory judgments that are out of step with both the federal judiciary and the general public. While debates involving the nature and extent of executive power, the interpretation of legislative statutes, and other matters of dispute can and do occur, forum shopping erodes the impartiality and public confidence that underlies these discussions, ultimately rendering them ineffectual and counterproductive. It is up to the federal judiciary to affirm and adhere to standards of behavior that promote independence and effectiveness over ideological zeal.

[1] Pierson, Brendan. 2023. “Explainer: Kacsmaryk suspends approval of abortion pill. What's next?” Reuters.

[2] Ables, Kelsey. 2022. “U.S. judge in Amarillo halts Biden administration's attempt to end “remain in Mexico” policy.” The Texas Tribune.

[3] Shanor, Amanda. Letter to H. Thomas Byron III, "Submission of a Proposal to Adopt a Rule to Increase the Randomness of Civil Case Assignments," September 1, 2023. Accessed March 30, 2024.

[4] VanSickle, Abbie. 2023. “Schumer Asks Judicial Policymakers to End Single-Judge Divisions in Texas.” The New York Times, July 11, 2023.

[5] “2021 Year-End Report on the Federal Judiciary.” 2021. Supreme Court.

[6] “Conference Acts to Promote Random Case Assignment | United States Courts.” 2024. U.S. Courts.

[7] McConnell, Mitch, John Cornyn, and Thom Tillis. Letter to Danny Reeves, March 14, 2024. Accessed March 30, 2024.

[8] Raji, Tobi. 2024. “Federal police against ‘judge-shopping’ is guidance, not binding, officials say.” The Washington Post.

[9] Millhiser, Ian. 2024. “The federal courts’ new “judge shopping” rules are a major blow to Republicans.” Vox.

[10] Macagnone, Michael. 2024. “Federal courts seek to stop ‘judge shopping’ with new rule.” Roll Call.

[11] Hutzler, Alexandra. 2023. “Unprecedented Texas abortion pill ruling sparks debate about 'judge shopping.'” ABC News.

[12] 668 F.Supp.3d 507

[13] 143 S.Ct. 1075 (Mem)



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