A federal judge in Texas made news in January when he allowed a suit filed by Idaho, Kansas, and Missouri to proceed against the Food and Drug Administration’s approval of medication abortion, based on facts that have no particular connection to his court. Arguably, there are few venues less logical for debating the safety of medication abortion than Texas, where the method is already banned. Making sense of how the case ended up before this judge in the first place requires an understanding of judge shopping, a growing issue in the federal judiciary.
What is judge shopping?
When a case is filed in federal court, it generally goes through a case-assignment process designed to randomly draw an eligible judge out of a general pool. Judges and legal experts recognize that this randomness is critical to courts serving and being perceived as a legitimate and impartial authority. Judge shopping is a practice by which litigants exploit quirks in the structure of the federal judiciary to evade random assignment and instead hand-pick judges who are sympathetic to their ideological goals. Perhaps the most well-known recent example of judge shopping is the challenges to medication abortion filed in Amarillo, Texas.
Anti-abortion plaintiffs, among other conservatives, have flocked to the tiny town of Amarillo because it has only one federal judge: Matthew Kacsmaryk, a self-proclaimed abortion opponent who joined the bench after a career of advocating for conservative Christian causes like restricting contraception. Kacsmaryk made headlines in 2023 when he temporarily banned the abortion pill mifepristone nationwide. The Supreme Court paused his decision and ultimately dismissed the case because the plaintiffs lacked standing to sue (a fact Kacsmaryk had ignored). However, the issue is far from settled now that Kacsmaryk has allowed three state attorneys general to revive the suit.
How is judge shopping possible?
There are more than 600 active federal trial judges divided among over 90 districts. Geographically dispersed districts are broken into divisions, and some divisions have only one or two judges.
Plaintiffs suing the federal government generally can choose any district where they can establish a local connection. Although they used to have to establish a connection to the particular division where they were filing, Congress lifted that requirement in 1988. Some districts still impose that requirement themselves, but many do not.
Once a plaintiff has picked a division, local practices vary on whether that division has its own designated judge or draws from a larger pool of judges in the district. Some districts, such as the Northern District of Texas (which includes Amarillo), have chosen never to randomize across divisions, allowing plaintiffs to “shop” for a judge by filing in a division where that judge hears all the cases. Unsurprisingly, conservative activists have flocked to the northern district’s single-judge divisions where they are guaranteed a conservative judge predisposed to issue national injunctions blocking liberal federal policies. What’s more, each of these judges decides whether their court is the proper venue — a decision that is difficult to appeal.
Among the northern district’s single-judge divisions, Amarillo stands out for the lengths to which plaintiffs will go to land there. The Alliance for Hippocratic Medicine, a national anti-abortion organization based in Tennessee, went so far as to incorporate in Amarillo and then sue there just after the Supreme Court reversed Roe v. Wade. And last fall, then-candidate Trump, a Florida resident, sued CBS, a New York corporation, in Amarillo on the flimsy ground that some residents of the town watched the interview at issue in the complaint. Although Trump’s suit is widely seen as frivolous, CBS has signaled that it will take the unusual step of offering a large settlement, which may be in part due to predictions about how Kacsmaryk would oversee the case.
Why is judge shopping a problem?
Judge shopping undermines the rule of law by calling into question judicial impartiality in both perception and fact.
In addition to affording individual plaintiffs an unfair advantage, judge shopping has distorted federal jurisprudence more systemically. When plaintiffs are uncertain about which judge they will draw, they have an incentive to moderate their claims and legal theories to appeal to different potential audiences — that’s not necessary when they can hand-pick their judge. In fact, in some cases, judge shopping allows a plaintiff to choose a judge who has already ruled for other plaintiffs raising nearly identical claims, as happened in the medication abortion case.
As the courts are currently composed, the distortion judge shopping causes is pushing the law rightward, both because single-judge divisions are more common in rural and conservative areas and because the most conservative districts have resisted calls to randomize across divisions. The distortion is particularly pronounced because some of the most conservative single-judge divisions are in the Fifth Circuit, where the court of appeals itself is an ideological outlier. Activists have pushed the jurisprudence of the Fifth Circuit Court of Appeals so far out of alignment with the national baseline and existing precedent on issues like abortion and gun rights that even the conservative-controlled Supreme Court has had to dedicate an inordinate proportion of its docket to reining it in.
Even when the Supreme Court does step in to reverse a lower court’s order, plaintiffs can still reap the benefit of delaying national policies for months, a particularly effective way to stymie a president’s agenda. Judge shopping also influences the way the facts are developed in high-profile and contentious cases, as trial courts exercise broad discretion in excluding, discounting, or crediting evidence.
Both Democrats and Republicans recognize that judge shopping damages the judicial system. Chief Justice John Roberts has stated that the principle of random case assignment is “important to public confidence in the courts.” When one judge in a single-judge division in Waco, Texas, began courting and drawing patent suits, Senate Majority Leader Thom Tillis (R) and Senate Minority Leader Chuck Schumer (D) teamed up to complain to the Judicial Conference — the federal judiciary’s national policymaking body — that allowing litigants to judge shop “creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law.” They asked the conference to implement “appropriate reforms.” Under widespread, bipartisan public and institutional pressure, the district comprising Waco quietly moved to randomize incoming patent suits among a dozen judges.
Don’t plaintiffs of all political stripes try to judge shop?
Liberal plaintiffs are less likely than conservatives to judge shop, partly because they lack opportunities to do so given the current conservative tilt of most single-judge divisions.
Liberal and conservative plaintiffs alike do “forum shop” — that is, they sue in judicial circuits where the courts are more likely to be friendly toward them. But picking a pool of judges who are randomly assigned is different from picking a specific judge; it’s like the difference between a prosecutor striking some jurors from a randomly selected pool and a prosecutor actually placing jurors on the panel.
Take, for example, the recent slew of litigation challenging President Trump’s executive orders. Plaintiffs are certainly filing their cases strategically in more favorable judicial circuits, but because they lack the same judge-shopping opportunities, these suits are landing in front of a more ideologically mixed bench, including judges nominated by Trump and past Republican presidents in multiple circuits. This both incentivizes more moderate arguments that better align with existing precedent and makes it more likely that the lower courts will decide these cases in ways that better reflect the judiciary and the current state of U.S. law as a whole. Accordingly, although these suits are in early stages, some Republican-appointed judges have already ruled against Trump and some Democratic-appointed judges have ruled for him.
Can judge shopping be stopped?
Yes, and some decision-makers are actively trying to do so. Congress, of course, could issue a new rule of civil procedure requiring random case assignment across divisions. But as Senators Tillis and Schumer recognized, and as the Department of Justice has argued, the Judicial Conference also has the authority to impose this requirement.
In the fall of 2023, the Brennan Center and constitutional law scholar Amanda Shanor asked the Judicial Conference’s rules committee to consider a rule that would protect against judge shopping by requiring districts to randomly assign cases in which the outcome could affect people beyond just the district where the case is filed. The rules committee referred the matter to its advisory group for consideration. The advisory group opined that “given the importance of this issue, . . . it should remain high on [the group’s] agenda.” Soon thereafter, in March 2024, the conference issued formal (but nonbinding) guidance that “district courts should apply district-wide assignment to” civil actions seeking statewide or national relief.
Prominent Republican-appointed judges in the Judicial Conference strongly supported this step. “I’m really proud that we did this,” said Sixth Circuit Chief Judge Jeffrey Sutton, calling the guidance an “elegant solution” to judge shopping. Judicial Conference secretary and district court judge Robert Conrad also hailed the rule, saying, “It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”
Outside the conference, however, this modest reform effort drew howls of protest and defiance. Rather than actually defending the judge-shopping loophole on its merits, opponents of the conference’s guidance simply dismissed it as “caving to political pressure.”
Tellingly, the loudest protests came from a handful of judges sitting in the Fifth Circuit and from Sen. Mitch McConnell (R-KY), who has led Republicans’ decades-long effort to remake the federal judiciary into an instrument of conservative power. The unusually combative public statements from these judges are a reminder that judge shopping is not merely a tactic litigants use; it also empowers extremist judges by handing them novel, boundary-pushing litigation aligned with their ideology that enables them to set nationwide policies. (Senator Tillis warned that judge shopping in the context of patents encourages “unseemly” behavior by judges to attract and retain certain types of cases.) Unsurprisingly, the Northern District of Texas quickly announced it would not be following the conference’s guidance.
As the Brennan Center and others have argued, because districts are not uniformly following the conference’s guidance on random case assignment, the conference should take further steps to implement their guidance through a binding rule. Unfortunately, the political backlash seems to have halted progress within the conference — for now.
What are other potential solutions to address judge shopping?
Even without a binding rule from Congress or the Judicial Conference, there is potential for progress. Since the conference issued its guidance, districts in Florida, Indiana, Kentucky, Massachusetts (where several anti-Trump suits have been filed), Pennsylvania, and Virginia altered their case-assignment rules to comply with the guidance, joining the various districts that already had implemented safeguards against judge shopping.
The public should continue to press the Judicial Conference and Congress for reform. Absent a binding rule, the legal community and public should be aware of the tools that districts and judges have to address judge shopping and press the expectation that more of them will use these tools.
Districts can revise their rules, as several have done since the conference issued its guidance. Judges, for their part, can stress in their individual rules that they will only hear cases that are connected to their division, and they can actively invite arguments that a case would be more appropriately heard elsewhere, as at least one Texas judge does. They can use existing venue rules to discourage judge shopping, as some have tried to do. Additionally, judges can decline to issue nationwide injunctions, instead issuing more limited declaratory relief that protects the plaintiffs but also allows an issue to be litigated in multiple courts and percolate up to the Supreme Court more deliberatively.
There are conservative judges in our system who have taken all these steps, along with liberal judges — reinforcing that random case assignment need not be a partisan issue. Moreover, these measures work. Since one Texas judge revised his published individual practices to discourage judge shopping, advocacy groups have stopped trying to use his court as a venue for seeking nationwide injunctions. And since the Western District of Texas began requiring random assignments for patent cases, the share of cases assigned to the Waco judge plummeted.
But as the backlash to the conference guidance confirms, voluntary observance isn’t enough. Only binding rules by national policymakers can fix this problem in the places where it’s most entrenched.
