Judge Shopping Targeted by ABA, Citing Texas Abortion Lawsuit

The American Bar Association wants courts to crack down on judge shopping in cases challenging federal and state regulations, and laws.

The American Bar Association’s House of Delegates on Monday adopted a resolution that “urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single U.S. District Court judge without random assignment.”

State attorneys general and other lawyers challenging big ticket federal and state actions have long looked to get their suits in front of judges who they believe are likely to side with them. The practice has grown in recent years with litigants seeking out courts that have separate geographic divisions and as few as a single judge in certain locations.

The ABA’s new policy is a response to recent lawsuits over reproductive health care, the group said.

Anti-abortion groups, backed by the Christian legal advocacy group Alliance Defending Freedom, successfully shopped a suit challenging the Food and Drug Administration’s decades-old approval of the abortion drug mifepristone.

The groups filed the suit in the Amarillo division of the US District Court for the Northern District of Texas. Judge Matthew Kacsmaryk, who was appointed by Donald Trump in 2019, is the only judge assigned to the division.

Kacsmaryk ruled that mifepristone should be suspended nationwide and restricted its use. The Supreme Court blocked those restrictions and allowed the drug to remain on the market while the legal fight is hashed out in the US Court of Appeals for the Fifth Circuit.

Kacsmaryk is assigned all cases filed in the Amarillo Division, one of seven in the Northern District of Texas, under a new case assignment order effective in September. He had a 95% chance of hearing any case filed in Amarillo prior to that time.

The Northern District of Texas isn’t the only court that divides cases this way. State officials from both political parties use this strategy to their advantage.

Republican state attorneys general have targeted courts in Texas and Louisiana where they believe the odds are better for getting a sympathetic judge. Democratic attorneys general have sought out judges in the Southern District of New York and the Northern District of California.

The strategy has paid off.

Republican state attorneys general have repeatedly sought out Judge Terry Doughty, chief judge of the Western District of Louisiana. Doughty recently ruled for Missouri and Louisiana in a major fight over free speech. He blocked a large swath of the government from communicating with social media platforms to urge or pressure them to remove certain content.

Legal scholars said opinions like Doughty’s show the power of judge shopping.

More than half, 55, of the 94 federal district courts have been divided into divisions by geography since 2018, the ABA said in a report accompanying the resolution. At least 35 of those 55 divisions appear to have either a single district judge or two district judges assigned each

“Federal statutes leave case-assignment mechanisms to each district, with the judicial council of the appropriate circuit authorized to set procedures should the district court fail to do so,” the ABA said.

“Over the past several years the public perception has grown that high-profile cases with national impact are filed by repeat litigants in particular districts and divisions in order to be assigned to particular judges,” the organization added.