Earlier this week, the Judicial Conference, a committee of judges that sets policy for the federal judiciary, announced that it has adopted a new policy to require random judicial assignment for cases with national or statewide implications. This is a welcome sign that the conference is taking seriously the systemic problem of “judge shopping” — the tactic of exploiting case assignment rules to hand-pick ideologically friendly judges, often in cases with sweeping national implications. This practice undermines both the fairness of the judiciary and public confidence in it. That’s why last fall, we called for the type of policy change announced on Tuesday.
The federal case assignment system has been susceptible to judge shopping because many judicial districts have been broken into smaller divisions staffed by only one or two judges, and cases are automatically assigned to the division where a case is brought. Plaintiffs can “shop” by filing cases in particular divisions where their case will have a high chance of being assigned to a specific judge they think will favor them. Each district currently has the discretion to develop its own rules for case assignment, and while some districts have limited judge shopping by randomizing judicial assignments across divisions, others have not.
Historically, plaintiffs of all political stripes have filed cases in jurisdictions where they think the pool of judges is more likely to favor them. However, with the country increasingly polarized and Congress gridlocked, litigants recently have taken this tactic to new heights to obtain nationwide injunctions against federal policies from judges they have reason to believe will rule in their favor. One anti-abortion group even went so far as to incorporate an organizational plaintiff in a single-judge district shortly before filing suit and seeking a nationwide injunction. A small number of judges in single-judge divisions, most concentrated in Texas, have issued nationwide injunctions against a range of federal policies related to immigration, abortion, contraception, gun regulation, employment law, and educational policy. While some of these injunctions were eventually lifted by the U.S. Supreme Court, they nonetheless had the lasting systemic effect of blocking these policies for months or years.
These cases have damaged public confidence in the fairness of the judicial system and prompted bipartisan calls for change, including from the American Bar Association, senators, and civil rights groups. Several members of Congress have introduced legislation to address the issue. And Supreme Court Chief Justice John Roberts has publicly recognized that the principle of random case assignment is “important to public confidence in the courts.”
In September 2023, we asked the Judicial Conference’s rules committee to consider a rule that would require that “in cases where a plaintiff seeks injunctive or declaratory relief that may extend beyond the district in which the case is filed, districts shall use a random or blind assignment procedure to assign the case among the judges in that district.” Alternatively, we suggested, the conference could craft the rule to require randomization in cases where “at least one of the plaintiffs is a governmental entity or official, resides outside the division, or is a member organization that includes members residing outside the division,” and the relief sought “would extend outside the district.” We noted that the conference has various options for striking a balance between administrability, preventing the most egregious forms of judge shopping, and protecting single-judge divisions for truly local issues brought by truly local plaintiffs.
As our proposal noted, we know districts can operate under rules like these because many already do. Most recently, in response to judge-shopping concerns in patent cases filed in Waco, Texas, and after Chief Justice Roberts referred the issue to the Judicial Conference for study, the Western District of Texas revised its rules to require the random assignment of patent cases among the 12 judges in the district regardless of where the case is filed. Other districts have put similar measures in place for various types of cases. And the Northern District of New York and the Western District of Missouri — both large districts separated into many divisions — assign all their judges to all their divisions and randomly divide cases amongst them, regardless of where the cases were filed.
The rules committee referred the matter to its advisory group for consideration and started research projects about “the history and past precedent” on the legal question of the committee’s authority in this area. The advisory group sought input from the Department of Justice, which confirmed that our proposed rule was necessary and would be a proper exercise of the conference’s rulemaking authority. The advisory group then reported to the committee its view that “given the importance of this issue, . . . it should remain high on [the group’s] agenda.”
This week, the conference took a major step in this direction, announcing it would issue a policy requiring random assignments for “all civil actions that seek to bar or mandate state or federal actions, ‘whether by declaratory judgment and/or any form of injunctive relief.’” As Chief Judge Jeffrey Sutton of the Judicial Conference explained, “The idea behind this most recent amendment is to say we get the idea of having local cases resolved locally, but when the case is a declaratory judgment action, national injunction action, obviously, the stakes of the case go beyond that small town or that division.”
The conference has not yet made the policy language public, and it’s unclear whether or how fast districts with judge-shopping problems will alter their rules to comply with the new requirements. But the conference’s move is an encouraging sign of its commitment to curtailing current abuses. As a next step, and to ensure that all judicial districts adhere to this policy and that the public has clarity and transparency, the federal courts should adopt a new Federal Rule of Civil Procedure that parties can rely on as binding authority.
Amanda Shanor is a scholar of constitutional law and federal courts and an Assistant Professor and the Wolpow Family Faculty Scholar at the Wharton School of the University of Pennsylvania
