Written By: Igor dos Santos
The Judicial Conference of the United States published a new policy last Tuesday, March 12, to curb judge shopping in federal courts. In essence, it directed District Courts to randomly assign cases on a district-level basis when the plaintiff seeks a national injunction. Today, a few Districts adopt internal divisions that have the result of allowing plaintiffs to choose the judge who will hear their cases. For example, the Northern District of Texas assigns “all cases” filed in the Amarillo Division to Judge Matthew Kacsmaryk. Some have perceived the Kacsmaryk bench as more friendly to their goals and have thus chosen to file cases only in Amarillo. In 2023, Judge Kacsmaryk issued a national injunction that reversed the decades-long approval of Mifepristone, the most used abortion medication in the country, thus nearly prohibiting abortion access nationwide, even in those states where it is legal.
The Judicial Conference is the policy-making body of the Federal Judiciary, led by the Chief Justice of the Supreme Court. As a longstanding practice, the Conference releases guidance that seeks to discourage forum shopping and promote transparency in case assignments. Congress occasionally enacts laws that outright prohibit forum shopping by conferring exclusive subject matter jurisdiction to a court, or that give discretion to judges to dismiss cases if the action was filed in a venue that would be unfair to one of the parties.
But forum shopping differs from judge shopping. Courts don’t like forum shopping because it creates an opportunity for plaintiffs to choose the law that will apply to their case. For example, in the significant Erie Railroad Co. v. Tompkins case, the Supreme Court ushered in a new era of civil practice by overruling decades of federal common law. Before, when choosing between filling in federal or state courts, certain litigants could take into consideration what the “federal common law” on topic was and choose their forum accordingly. As later described in Hanna v. Plumer, one of the “twin aims” of Erie was precisely to stop this forum shopping between federal courts and state courts.
Judge shopping starts from a more cynical place: although the law is the same, plaintiffs can use internal administrative divisions to game the system and have a pre-selected judge hear their cases. For example, in a suit to invalidate a policy from the EPA banning certain toxic emissions, with 677 federal judges available in the country, judge shopping allows the litigant to strategically file the case with a judge that will 100% of the times hear the case.
Sometimes, the seller even advertises. Judge Alan Albrigh from the Western District of Texas, sitting in a division where he has no peers, has gone on a multi-year media blitz to advertise his bench as favorable to plaintiffs. The marketing paid off: Waco, Texas now has the busiest patent court in the country.
Commentators were quick to tie this new policy to the flood of national Kacsmaryk-like injunctions. As it turns out, it looks like they might have jumped the gun. In a revised memo published on Friday, March 15, the Conference clarified that the “policy” was actually non-mandatory guidance. This is in line with 28 U.S.C. §137, which grants Chief Judges wide discretion to implement rules to manage local dockets.
Before the revised memo was published, Senate Minority Leader Mitch McConnell sent letters to “about a dozen” Chief Judges advising them to “ignore” the prior policy, saying that Conference policy is not legislation. The Washington Post reported that Chief Judge Randy Crane of the Southern District of Texas even stated that the policy violates the statute, and that “[s]uggestions of the Judicial Council can’t override that law.” Judge James Ho, from the Fifth Circuit, stated “[j]udges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure.” All seemly pointed to Senate Majority Leader Chuck Schumer’s criticisms about the practice.
Supporters of the measure express that judge shopping undermines trust in the court system. Professor Steve Vladeck from the University of Texas at Austin identified eight divisions in Texas where a party is certain to have a specific judge hear the case. He joined a chorus of civil procedure professors that lauded the guidance and argued that judge shopping creates an appearance of partiality. Chief Justice Roberts himself criticized the practice in his 2021 annual report, nodding that judges must be “generalists capable of handling the full range of legal issues.”
Regardless, the revised memo makes it clear that the guidance has no teeth. Chief Judge Crane expressed that it was helpful in that it explained the policy was only an encouragement. Judge shopping will thus continue alive and well in Amarillo, Waco, and other Texas divisions. As appears obvious from these developments, the Chief Justice’s new policy asks – but does not demand – compliance with longstanding principles of judicial independence, integrity, and transparency. Only time will tell if saying please is enough.
Sources:
JCUS-MAR 2024, p. __.
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Hanna v. Plumer, 380 U.S. 460 (1965).
JOHN G. ROBERTS, 2021 YEAR-END REPORT ON THE FEDERAL JUDICIARY (2021).
Jonas Anderson & Paul R. Gugliuzza, Federal Judge Seeks Patent Cases, 71 DUKE L.J. 419 (2021).
Steve Vladeck, A crackdown on ‘judge shopping’ provoked a rather telling Republican reaction, MSNBC (Mar. 16, 2024).
Steve Vladeck, The Growing Abuse of Single-Judge Divisions, (Last visited Mar. 18, 2024).
Tobi Raji, Judges, GOP lawmakers slam new policy that limits ‘judge shopping’, THE WASHINGTON POST (Mar. 15, 2024).
Tobi Raji, U.S. courts clarify policy limiting ‘judge shopping’, THE WASHINGTON POST (Mar. 16, 2024).
28 U.S.C. §137(a) (2024).