New Policy Aims to Curb 'Judge Shopping'
A new federal policy passed by the U.S. judiciary aims to curb the practice of legal “shopping” — no, not that kind of shopping. Rest assured, Americans can continue to shop at retailers to their heart's content. Rather, the new policy is directed at what’s been seen as an increasing problem of cherry-picking judges who are likely to rule in your favor.
Let's explore our legal system's shopping problem, and what federal authorities are trying to do about it.
We're Going Shopping!
There are a couple of different kinds of "shopping" practices that those filing lawsuits could be tempted by. If you’ve ever been involved in a lawsuit, you may have heard about “forums” or the contentious practice of “forum shopping.” This isn’t quite the same as judge shopping, but the two are similar in that they can significantly impact the outcome of a case.
Forum shopping refers to choosing the entire court system (jurisdiction) where you believe the laws or general judicial temperament will be most favorable to your case. This could involve factors like state laws, familiarity with specific types of cases, or even a perceived jury pool leaning a certain way.
Judge shopping is a more specific tactic within forum shopping. Here, you try to file your case in a particular court division or even in front of a specific judge known to be sympathetic to your case's arguments. This is an even more frowned-upon practice compared to general forum shopping.
The two practices are similar in some ways, but judge shopping raises more concerns about fairness in the judicial system. A helpful analogy might be to imagine you're looking for a specific type of shoe; forum shopping is like choosing a particular department store because they generally have a good selection of shoes, while judge shopping is like going to that department store and waiting for a specific salesperson known for their expertise in the type of shoe you need.
Though both types of “shopping” are controversial, neither are illegal. They are practices that have been around for as long as most current lawyers can remember. Various federal cases have explicitly contemplated the question of judge and forum shopping and ruled that even though they may be dishonest practices, they can legally continue to happen. One notable case that’s often cited in defending the practice of shopping is called Smith v. Bayer Corp. established that courts have limited ability to address the "judge-shopping problem."
Judge Shopping Cases Make Headlines
It’s not until recently that the issue has been getting major headlines. Recently, judge shopping has been getting attention in the media as a strategy used by pro-life parties in cases related to abortion.
In 2022, a lawsuit called Walker v. Marshall was filed challenging Alabama's ban on gender-affirming healthcare for transgender youth. A judicial panel later accused the lawyers of attempting "judge shopping" by strategically filing the case in a specific court division to get a judge believed to be more favorable.
Judge Shopping in the Trans Rights Context
The Walker plaintiffs challenging the Alabama law first filed their lawsuit in the federal District Court of the Middle District of Alabama, where it was assigned to Judge Marks. The next day, the plaintiffs filed a motion to reassign the case to a different judge, Thompson, on the grounds that Judge Thompson had previously presided over a similar case, even though the defendants argued back that the two cases were not factually or legally similar and that the other case is over with anyway. Judge Thompson was known to be a liberal judge and had previously ruled in favor of transgender plaintiffs, though on very different issues. The implication was that the plaintiffs saw Judge Thompson as having previously ruled in a way that was sympathetic to their issue, and they thought they’d likely win their case in his court.
In the end, the case was transferred instead to the Northern District of Alabama because another suit (Ladinsky v. Ivey) challenging the same law had been filed there recently, and it made sense for the same court to hear them together. Those cases were up before Judge Liles Burke. But the same day, both the Walker plaintiffs and the Ladinsky plaintiffs, within nine minutes of each other, moved to dismiss their suit “with prejudice.” Dismissing a lawsuit "without prejudice" means that the person who filed the lawsuit is allowed to file it again in the future, as opposed to a dismissal "with prejudice," where the case is closed and cannot be filed again. The plaintiffs’ attorneys then told the media that they planned to refile their lawsuit immediately. Judge Burke observed: “At the risk of stating the obvious, Plaintiffs’ course of conduct could give the appearance of judge shopping— a particularly pernicious form of forum shopping —a practice that has the propensity to create the appearance of impropriety in the judicial system.”
So did those plaintiffs engage in improper judge-shopping? A panel of judges was tasked with finding out. A year and a half later, they issued a final report on the matter, but it was sealed because the plaintiff’s lawyers requested to keep it confidential while they challenged it. Their attorneys maintain that they don’t dispute the facts laid out in the report, but instead contest the panel’s legal conclusions. Some legal experts certainly think the fact that the plaintiffs are challenging the report in the first place is a clue that the results of the report were cutting against them.
Judge Shopping in the Abortion Context
One other notable example of judge shopping accusations making major headlines is in the context of abortion litigation. This occurred last year in a case where anti-abortion rights activists sought to overturn federal approval of the abortion medication mifepristone. The lawsuit was filed in a Texas district where one Judge Kacsmaryk would likely preside over the case and would be friendly to their point of view. Appointed by former President Trump, Judge Kacsmaryk was known for his conservative views. The judge did indeed rule in favor of the plaintiffs, although the case has since been taken up by the Supreme Court.
And these aren't the only cases making major news with accusations of judge-shopping. Perhaps it’s all the recent negative press that’s finally led the federal judiciary to do something about all the shop-a-holics in the American legal system.
Federal Judiciary Passes New Policy
Last week, the U.S. federal judiciary adopted a new policy aimed at reigning in the practice of judge shopping. The new policy now requires lawsuits seeking to block state or federal laws to be randomly assigned a judge throughout an entire federal district, rather than being heard by judges in a specific courthouse or division within that district.
But not all judges are a fan of the new policy. Two conservative federal judges have criticized the change as being the result of political pressure and in conflict with federal law. One of them, 5th Circuit Court of Appeals Judge Edith Jones, pointed out that a federal statute gives district courts control over the allocation of cases on their dockets. The other, Circuit Judge James Ho, stated: "Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure.”
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