If you are a right-wing activist looking to persuade a federal judge to impose your views on the country, what do you do? For starters, you go shopping.
Judge shopping, that is. Head to the courthouse in Amarillo, Texas. No matter if you aren’t from there. There is precisely one federal district judge in Amarillo. His name is Matthew Kacsmaryk. And odds are high that he will issue a ruling just as you seek, one that imposes a highly conservative, indeed theocratic, worldview. He might even issue an injunction that purports to cover the entire country.
That’s what happened a year ago when activists pulled up to Amarillo and won a ruling by Kacsmaryk effectively banning mifepristone, a medication used for more than half of all abortions in the United States. The activists knew, as the judge’s sister told reporters, that he had made it his mission to end all abortions in the United States. (He has called homosexuality “disordered” for good measure.) It showed the power of one judge with a gavel and a grudge to impose his views on tens of millions of citizens.
It will crush confidence in the rule of law if judges are seen as partisan or political actors.
This was too much even for the reactionary Fifth Circuit Court of Appeals, which stayed some of the more extreme parts of Kacsmaryk’s order while the case was appealed to the Supreme Court. Later this year, the court will hear this case. However it turns out, it was an unsettling reminder of the vulnerability of our legal system to judge shopping.
All states have at least one federal district court, but these are often broken into smaller divisions that usually automatically assign cases among one or two judges. Litigants can strategically file in a division with an ideologically friendly judge to boost their odds of a favorable ruling. That matters most when a case is heavy with political or ideological significance. Picking the right law is great; picking the right judge can be even better.
All this is magnified by the weird fact that the Supreme Court has never ruled on whether a single judge can issue a nationwide injunction stopping conduct or barring government from acting. Liberals and conservatives alike have used this for years.
Last fall, the Brennan Center urged the Judicial Conference, a panel of judges that sets policies for the federal judiciary, to address this problem. In a meeting last week, the conference took a welcome if tentative step in the right direction. It announced a policy to encourage random assignment of cases with a statewide or nationwide impact. That would lessen the odds that filing a case in a given division would give a plaintiff their judge of choice. The policy makes sense. But the guidance is nonbinding, and it’s unclear whether districts will follow it. Still, it is a promising sign that federal judicial leaders recognize judge shopping as a threat to public trust. Soon we will learn if their gentle encouragement leads to action. I’m not holding my breath.
The stakes could not be higher. Yesterday we got a glimpse of why this matters so much. Murthy v. Missouri is part of the drive to clear the path for disinformation in the 2024 election. A judge had barred the federal government from even talking to social media platforms to discourage disinformation on Covid-19 or voting. Republican state attorneys general brought the case in a division where they were all but guaranteed to get Trump-appointed Judge Terry Doughty. Last July, he ordered federal officials to stop communicating with social media companies about false content, removing a vital check on the rampant election falsehoods that continue to circulate online.
A Supreme Court ruling on the Murthy case will come in the next few months, but as my colleagues Lawrence Norden and Gowri Ramachandran have pointed out, the trial judge’s ruling has already wreaked significant damage. Government agencies simply stopped talking with Facebook, YouTube, and other platforms. Private groups and scholars pulled back. There is a wide-open terrain for the Big Lie in the 2024 election.
Judge shopping undermines public trust. Opposing it should be a nonpartisan cause. Instead, the new policy—mushy as it is—faced a sharp partisan backlash. Republican senators sent letters to about a dozen federal district court chief judges advising them to disregard the policy change. They accused the conference of involving itself with partisan battles, even though 15 of the conference’s 26 current members were appointed by President George W. Bush.
Public trust in the Supreme Court has plummeted to the lowest level ever recorded in polls. Lower courts may not be far behind. It will crush confidence in the rule of law if judges are seen as partisan or political actors. Random case assignment serves as a bulwark against the undue influence of political agendas on our courts. So one or maybe two cheers for the new policy. Next, the Judicial Conference should cement this policy in the Federal Rules of Civil Procedure. The window for judge shopping should be slammed shut.
