Judge Shopping in Focus: A Growing Concern in the Federal Judiciary
In January, a federal judge in Texas drew attention by agreeing to proceed with a lawsuit against the Food and Drug Administration’s approval of medication abortion. The suit, filed by Idaho, Kansas, and Missouri, challenges the FDA’s decision, despite no direct connection to the Texas court where it was filed. This incident highlights the practice of judge shopping, a controversial method used by litigants to select sympathetic judges.
Understanding Judge Shopping
Typically, federal court cases are assigned randomly to judges. This process is crucial for maintaining the judiciary’s neutrality and credibility. Judge shopping, however, bypasses this randomness, allowing plaintiffs to seek judges who align with their ideological leanings. A notable case involves litigation against medication abortion filed in Amarillo, Texas, where Judge Matthew Kacsmaryk, known for his anti-abortion stance, presides.
Judge Kacsmaryk, who gained notoriety for temporarily banning the abortion pill mifepristone nationwide in 2023, saw his decision paused by the Supreme Court. Yet, he allowed three state attorneys general to revive the lawsuit. This scenario exemplifies how judge shopping has been leveraged to influence judicial outcomes.
How Judge Shopping is Facilitated
With over 600 active federal judges spread across 90 districts, judge shopping exploits the geographic divisions within these districts. Plaintiffs can choose a district based on established local connections, and, due to a 1988 congressional amendment, they don’t need a connection to a specific division.
Some districts, like the Northern District of Texas, never randomize across divisions, enabling plaintiffs to select judges like Kacsmaryk who are predisposed to certain outcomes. This has made Amarillo, with its single-judge division, a hotspot for conservative activists.
The Implications of Judge Shopping
Judge shopping undermines judicial impartiality, affording plaintiffs an advantage and distorting federal jurisprudence. It encourages plaintiffs to pursue extreme legal theories without moderating their claims, contrary to what would happen under random case assignment.
The practice has skewed the law to the right, especially in conservative areas like the Fifth Circuit, affecting national legal standards and prompting the Supreme Court to frequently intervene. Even when higher courts overturn lower court decisions, the delay benefits plaintiffs by postponing the implementation of national policies.
Efforts to Curtail Judge Shopping
Both political parties acknowledge the damage judge shopping does to the judiciary’s reputation. Chief Justice John Roberts has emphasized the importance of random case assignments for public trust in the courts. In response to concerns, some districts, such as those in Texas and Massachusetts, have changed their case-assignment rules to prevent judge shopping.
The Judicial Conference issued nonbinding guidance promoting random assignments for cases with broad impacts. Republican-appointed judges have supported these measures, yet opposition remains, particularly from conservative judges and politicians who view the guidance as political capitulation.
Can Judge Shopping Be Stopped?
While the conference’s guidance has led to some changes, binding rules from Congress or national policymakers are necessary to comprehensively address judge shopping. Some districts have proactively altered their rules to align with the guidance, but widespread reform is still required to ensure fairness and uphold public confidence in the judiciary.
