Justice on Demand: Examining the Practice of Judge Shopping

Over the past four years, many of the Biden administration’s policy proposals have been challenged in federal court. For instance, conservative activists have challenged Biden’s attempt at ending the “Remain in Mexico” policy, blocked rules that mandate that employers have protections for LGBTQ+ employees, and suspended federal approval of mifepristone, a key abortion-inducing medication that has been in use for decades. Presidents often face legal challenges for policies and legislation, but these three high-profile decisions have one strange element in common. All of them were decided by the same judge: Matthew Kacsmaryk. Kacsmaryk, appointed by President Trump in 2019, represents the Amarillo division of the Northern District of Texas. However, because Kacsmaryk is the only judge in that courthouse, he is responsible for deciding all civil cases filed in the Amarillo division. Kacsmaryk has a long history of issuing conservative rulings and using the language of right-wing activists in his opinions. Even though his decisions are often overturned by the Supreme Court, because of how federal cases are assigned in Texas, a group unhappy with a policy decision by President Biden can file a case in Texas and almost guarantee that Judge Kacsmaryk will issue a nationwide injunction. This process of “judge shopping,” an extremely precise type of forum shopping in which litigants can essentially choose which judge rules on their case, has created major problems for the implementation of executive policy and compromised the ability of the judiciary to act as an independent check on the legislative and executive branches.

Forum shopping has long been a practice used in the United States by litigants across the political spectrum. For example, plaintiffs seeking to challenge immigration law will often file in California because they believe they have a higher chance of their case being assigned to a liberal judge who would be more sympathetic to their arguments. However, the practice of judge shopping has ramped up in recent years, especially with regards to judicial appointees of Donald Trump in the state of Texas. The difference between judge shopping and forum shopping is that judge shopping allows plaintiffs to choose the exact judge that hears their case rather than simply improving the odds of being assigned to a more sympathetic judge. This practice is made possible by the structure of the U.S. judiciary. 

While Congress established each of the 91 federal district courts and determined their respective numbers of judgeships, it is up to each individual district to establish rules for the distribution of case assignments. In Texas, judicial districts are split into divisions where a group of judges hears all cases assigned to that division. However, some of these divisions are so small that there are only one or two judges that hear over all the cases in that division. This is the case in the Amarillo Division, where the rules set by the district’s chief judge dictate Judge Kacsmaryk hears over every civil case brought in Amarillo.

In addition to the three cases mentioned earlier, which were filed by conservative activists, the State of Texas itself has filed over twenty-nine challenges to various Biden administration policies in Texas district courts. None of them have been filed in Austin, the state’s capitol. Nor have any of them been filed in the state’s most populous cities:  Dallas, Houston, San Antonio, or El Paso. Instead, they’ve been filed in single-judge divisions such as Amarillo, Victoria, and Galveston, where there is a 100% chance of drawing a judge appointed by Donald Trump. These cases and their rulings have wide-reaching consequences because of the ability of district courts to halt federal policies. In 2021, Judge Kacsmarky issued an injunction, stopping the Biden administration from enforcing vaccine mandates on employees of Medicare and Medicaid. Judge Jeffrey Vincent Brown, appointed by Trump to the single-judge Galveston Division of the Southern District of Texas, blocked new environmental regulations aimed at protecting the nation’s waterways in 2023. Furthermore, when challenging a new proposal aimed at reforming immigration parole policy, the State of Texas admitted that it filed its lawsuit in Victoria because it meant that Trump-appointee Judge Drew Tipton was guaranteed to hear the case. The current structure of the federal judiciary allows plaintiffs to essentially break the impartiality of federal judges.

While some attempts have been made at reform, judges and conservative activists have resisted these efforts. In March 2024, the U.S. Judicial Conference issued a new rule that would require cases in a district to be randomly assigned to judges in that district, attempting to prevent litigants from being able to guarantee their case will be heard by a specific judge. However, following pushback from conservative judges and Senate Republicans, those in charge of creating the policy clarified that it was non-binding. As a result, the Northern District of Texas has refused to adopt the policy, and judge shopping continues in Texas. In Congress, both Senate Democrats and Republicans have introduced bills to curb the practice. However, because of differences in the respective targets of the bills and the current polarization in the Senate, neither is likely to garner the sixty votes needed to pass.

In this era of polarization, the judiciary has become increasingly politicized. Litigants are now essentially able to pre-determine the outcome of their case. Even though many of these cases end up being overturned, district court judges can still issue nationwide injunctions that can severely obstruct policy implementation. For example, though Judge Kacsmaryk’s initial ruling in FDA v. Hippocratic Alliance For Medicine that revoked approval for mifepristone was overturned unanimously by the Supreme Court, the status of abortions done using mifepristone was put in limbo for months, fueling confusion and misinformation about the safety of the drug. To stave off polarization of the judiciary, Congress must act to codify the policy recommendation of the U.S. Judicial Conference and eliminate judge shopping. For the courts to act as an independent check on the functions of the legislative and executive branches, one must not be able to manipulate the judicial system by selecting a judge who will do one’s political bidding

Wesley Horn is a first-year studying History at Brown University. He is a staff writer for the Brown Undergraduate Law Review and can be reached at wesley_horn@brown.edu.

Simon Juknelis is a first-year concentrating in computer science and history. He is an editor for the Brown Undergraduate Law Review and can be reached at simonas_juknelis@brown.edu.