Jack Richardson, Illustration of judges being shop for, in How “Judge-Mandering” is Eroding Trust in America’s Judiciary, The Economist (May 9, 202), https://www.economist.com/leaders/2024/05/09/how-judge-mandering-is-eroding-trust-in-americas-judiciary
Authored by Sonia Lazaro
In March 2024, the Judicial Conference of the United States[1] proposed a new policy to curtail “judge shopping” – a tactic used by state attorney generals and other litigants to file lawsuits in courts where a preferred judge “is known or suspected to be sympathetic to a particular cause.”[2]
This tactic has become increasingly effective for plaintiffs who wish to litigate “hot button” topics such as immigration, abortion, environmental, and even patent cases in federal courts.[3] But in a country where forum shopping has become seemingly inevitable, albeit an often unfavored tactic,[4] proponents of judge shopping have been pushing back against the new policy, claiming it violates 28 U.S.C. § 137.[5] Under this statute, federal courts are given “wide latitude to establish case assignment systems, permitting flexibility in managing their caseloads efficiently and in a manner that best suits the various needs of the district and the communities they serve.”[6] After receiving intense pushback, the Judicial Conference issued guidance that states that federal district courts have discretion in deciding how to implement this new policy.[7] This suggests that the new policy may not effectively curtail judge shopping, especially in federal courts where judge shopping has been encouraged by the judges themselves.[8]
While forum shopping has been occurring for years and is “driven by the search for favorable substantive law, favorable procedural rules, or ‘home court advantage,’”[9] judge shopping encourages litigants to file suits in courts who have adopted “administrative norms and practices that align with plaintiff preferences, such as predictable judge assignment procedures, favorable case management norms, and preferential motions practices.”[10] Judge shopping is trendy in federal judicial districts with small divisions because they usually only have one or two judges, where a case will have a high chance of assignment to a sympathetic judge.[11] Indeed, judge shopping has occurred for some time, as evidenced by the “patent litigation hotbeds” in the Eastern District of Texas and the District of Delaware.[12] The Eastern District of Texas had 630 new patent cases filed in 2023, while the District of Delaware drew 427 patent suits.[13] Within Texas, Chief Judge Rodney Gilstrap of the Marshall Division in the Eastern District of Texas and Judge Alan Albright of the Waco Division in the Western District of Texas have been competing for patent litigation cases, where Judge Albright himself drew 527 patent suits in 2023.[14] Even after the Western District of Texas implemented its case randomization policy in 2022, Judge Gilstrap and Judge Albright “were assigned more patent suits individually than any other judicial districts received collectively in 2023.”[15]
The “patent litigation hotbeds” in Texas and Delaware are just one example of how litigants utilize judge shopping. Picking up on how effective this tactic is, litigants have recently been using judge shopping to obtain favorable results regarding issues that have nationwide ramifications.[16] For example, the Alliance for Hippocratic Medicine (“AHM”) filed suit against the U.S. Food and Drug Administration (“FDA”) in the Northern District of Texas in the Amarillo division, where the case was assigned to former President Trump-appointed Judge Matthew Kacsmaryk because he was the only presiding judge.[17] Judge Kacsmaryk was formerly the deputy counsel for the deeply conservative religious liberty law firm First Liberty Institute, which was involved in litigation over reproductive health care while he was deputy counsel.[18] AHM sued the FDA over its approval of the medical abortion drug, Mifepristone, seeking a preliminary injunction ordering the FDA to suspend its approval of the drug.[19] Judge Kacsmaryk stayed the FDA’s approval and granted the nationwide preliminary injunction,[20] but the U.S. Supreme Court subsequently stayed his order until the case could be appealed to the Fifth Circuit and heard by the Supreme Court upon a petition for a writ of certiorari.[21] After granting certiorari, the Supreme Court heard oral arguments on March 25, 2024, with an expected ruling coming before the Court’s term ends in June.[22] This case highlights the type of nationwide “high-stakes” cases litigants use the judge shopping tactic on.
Unsurprisingly, the Texas Attorney General and other private litigants have brought more “hot button” cases to Amarillo for favorable outcomes from Judge Kacsmaryk. He has “reinstated the Trump-era ‘Remain in Mexico’ policy,”[23] he “struck down efforts from the Biden administration to protect LGBTQ workers and trans youth . . . [a]nd he ruled that a longstanding federal program that gives teens confidential contraception violated state law.”[24] However, other federal judges have aided the curtailment of judge shopping, like Judge Liles Burke of the Northern District of Alabama, who recently unsealed a report threatening sanctions against a group of lawyers fighting for LGBTQ+ rights who allegedly “purposefully attempted to circumvent the random case assignment procedures” of the Alabama district courts.[25] In another recent case, Judge Mark Pittman of the Northern District of Texas ordered the plaintiffs to explain the case’s connection to the court because there appeared to be “an attenuated nexus to the Fort Worth Division.”[26]
It remains to be seen if the new discretionary judge shopping policy will at least somewhat prevent litigants from hand-picking judges who seek to change federal laws and policies. What is evident is that policymakers and judges alike have varying viewpoints on the controversial tactic and the new policy.[27] The implementation and adoption of the policy will also vary. No matter one’s political leanings, this should not stop litigants and citizens from considering the widespread effects of judge shopping, especially when the cases involve significant and high-stakes national issues.
[1] Governance & the Judicial Conference, United States Courts (last visited Mar. 20, 2024), https://www.uscourts.gov/about-federal-courts/governance-judicial-conference#:~:text=Judicial%20Conference%20of%20the%20United%20States&text=It%20convenes%20twice%20a%20year,legislation%20involving%20the%20Judicial%20Branch. (“At the national level, the Judicial Conference serves as the policymaking body for the federal courts. It convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.”).
[2] Tobi Raji, U.S. Courts Clarify Policy Limiting ‘Judge Shopping’, The Washington Post (March 16, 2024, 12:51 p.m.), https://www.washingtonpost.com/politics/2024/03/16/judge-shopping-guidance-abortion-patent-courts/.
[3] Raji, supra note 3.
[4] J. Jonas Anderson & Paul R. Gugliuzza, Federal Judge Seeks Patent Cases, 71 Duke L. J. 419, 428 (2021).
[5] Raji, supra note 3; see 28 U.S.C. § 137(a) (“The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases . . . .”).
[6] Memorandum from the Comm. on Ct. Admin. and Case Mgmt. of the Jud. Conf. of the U (March 15, 2024), https://fingfx.thomsonreuters.com/gfx/legaldocs/gkvldqznrvb/03152024court-random.pdf.
[7] Nate Raymond, US Judiciary Says Courts Have Discretion to Adopt ‘Judge Shopping’ Policy, Reuters (March 15, 2024, 7:18 PM), https://www.reuters.com/legal/us-judiciary-says-courts-have-discretion-adopt-judge-shopping-policy-2024-03-15/.
[8] See Anderson & Gugliuzza, supra note 5, at 421 (noting how the lone district judge sitting in Waco, Texas, Judge Alan Albright, has made the Waco federal courthouse a “patent litigation hotbed” by expressing his desire to hear patent cases through advertising to patent plaintiffs everywhere).
[9] J. Jonas Anderson, Court Competition for Patent Cases, U. Pa. L. Rev. 631, 634 (2015).
[10] Anderson, supra note 10, at 635.
[11] Alice Clapman et al., Courts Move to Bolster Fairness by Addressing ‘Judge Shopping’, Brennan Center for Justice (Mar. 15, 2024), https://www.brennancenter.org/our-work/analysis-opinion/courts-move-bolster-fairness-addressing-judge-shopping.
[12] Anderson, supra note 10, at 632.
[13] Michael Shapiro & Lauren Castle, Top Patent Venues are Two Steps Ahead of Judge-Shopping Guidance, Bloomberg Law (Mar. 27, 2024, 4:05 AM), https://news.bloomberglaw.com/ip-law/top-patent-venues-are-two-steps-ahead-of-judge-shopping-guidance.
[14] Shapiro & Castle, supra note 14.
[15] Id.
[16] Clapman, supra note 12.
[17] Eleanor Klibanoff, Federal Judge at Center of FDA Abortion Drug Case Has History with Conservative Causes, The Texas Tribune (Mar. 15, 2023, 10:00 AM), https://www.texastribune.org/2023/03/15/federal-judge-amarillo-abortion-fda/.
[18] Klibanoff, supra note 18.
[19] All. for Hippocratic Med. v. U.S Food & Drug Admin. (The Mifepristone Case), 668 F. Supp. 3d 507, 522-23 (N.D. Tex. 2023).
[20] The Mifepristone Case, 668 F. Supp. at 560.
[21] See Danco Labs., LLC v. All. for Hippocratic Med., 143 S. Ct. 1075 (2023) (granting Application for Stay pending the disposition of the appeal and disposition for a writ of certiorari).
[22] Eleanor Klibanoff, U.S. Supreme Court Takes Up Texas Case Challenging Abortion Pill Access, The Texas Tribune (Mar. 26, 2024), https://www.texastribune.org/2024/03/26/texas-abortion-pill-supreme-court/.
[23] See Texas v. Biden, 20 F.4th 928, 1004 (5th Cir. 2021) (affirming the district court’s nationwide injunction against the Government’s implementation of the Migrant Protection Protocols), rev’d, 142 S. Ct. 2528 (2022).
[24] Klibanoff, supra note 18; see Neese v. Becerra, 640 F. Supp. 3d 668, 684 (N.D. Tex. 2022) (holding that § 1557 of the Affordable Care Act does not prohibit discrimination based on sexual orientation or gender identity);Deanda v. Becerra, 645 F. Supp. 3d 600, 628-29 (N.D. Tex. 2022) (holding that “administration of the Title X program violates the constitutional right of parents to direct the upbringing of their children and Texas Family Code § 151.006(a)(6)”), a’ffd in part, No. 23-10159, 2024 WL 1059721 (5th Cir. Mar. 12, 2024).
[25] Final Report on Inquiry, In re Amie Adelia, No. 2:22-mc-3977-WKW (M.D. Ala., N.D. Ala., S.D. Ala., Oct. 27, 2023), https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwxreeypw/03192024alabama_report.pdf; Nate Raymond, LGBTQ Rights Lawyers Face Potential Sanctions Over Alabama ‘Judge Shopping’, Reuters (Mar. 20, 2024, 6:53 PM), https://www.reuters.com/legal/government/lgbtq-rights-lawyers-face-potential-sanctions-over-alabama-judge-shopping-2024-03-20/.
[26]Order, Chamber of Com. of the U.S. v. Consumer Fin. Prot. Bureau, No. 4:24-cv-00213-P (N.D. Tex. Mar. 18, 2024) (finding that “only one plaintiff of the six in this matter has even a remote tie to the Fort Worth Division”).
[27] See Nate Raymond, US Senate Republicans Push Back Against Anti ‘Judge Shopping’ Policy, Reuters (Mar. 14, 2024, 1:05 PM), https://www.reuters.com/legal/us-senate-top-republican-mcconnell-criticizes-anti-judge-shopping-policy-2024-03-14/ (“Senate Minority Leader Mitch McConnell on the Senate floor said he hoped the U.S. Judicial Conference . . . would reconsider the ‘half-baked’ policy it adopted on Tuesday designed to ensure that cases challenging federal and state laws are randomly assigned judges.”); Nate Raymond, Senate Democratic Leader Shumer Urges ‘Judge Shopping’ Reform in Texas, Reuters (Mar. 22, 2024, 1:41 PM), https://www.reuters.com/legal/government/senate-democratic-leader-schumer-urges-judge-shopping-reform-texas-2024-03-21/#:~:text=March%2021%20(Reuters)%20%2D%20Democratic,challenging%20government%20policies%20to%20sympathetic (Senate Majority Leader Chuck “Schumer, who along with other Democrats had urged the judiciary to curtail such “judge shopping,” in remarks delivered on the Senate floor on Thursday said the practice had become “rampant” in Texas’ Northern District and should be addressed through the new reform”).
American Journal of Trial Advocacy 