Lawyers’ ‘Judge Shopping’ Likely to Survive Injunctions Curb

Lawyers are bound to keep “judge shopping” as a top tactic in trying to fight the federal government, even after the Supreme Court said a single court can’t hand down far-reaching orders against an administration.

The litigation strategy, in which attorneys file in courts where they think have a better chance at winning their case, has been under particular scrutiny after judges in Texas issued national orders that blocked Biden administration policies.

But legal experts said the high court’s June 27 ruling against “universal injunctions” is unlikely to stop lawyers from trying to get the best outcome possible, even if it doesn’t result in a broad order like it did before.

“The stakes may be lower but it’s still going to be the case that litigants are going to seek out, to the extent they have options, the most favorable forum,” said Richard Pildes, a constitutional law professor at New York University.

The decision in Trump v. CASA, the Supreme Court’s conservative majority said “universal injunctions,” or court orders that block actions for parties who aren’t involved in the underlying litigation, exceed the powers of district courts.

US District Judge Brantley Starr of the Northern District of Texas—which has gained national attention over its single-judge division—joked after the ruling that members of his court are more free now that they can’t hand down national injunctions.

But the justices left the door open for other forms of relief, teeing up lawyers to test which avenues will fare best in different courts.

Legal experts said parties might start seeking out courts that have lower bars for class certification or state standing to try and get as broad relief as possible in their cases.

“The judge that people may have been shopping for before or parties may have shopped for before may not be the one that they want to be in front of,” said Payvand Ahdout, a law professor with the University of Virginia.

She pointed to private parties often tailoring class-action lawsuits for circuits that have friendlier precedent on issues like certifying a class. “I think we’re going to see public law litigation move into those areas,” Ahdout said.

Justice Amy Coney Barrett in the court’s majority opinion raised the possibility of courts vacating a federal agency rule under the Administrative Procedure Act or granting injunctions for members of a class-action lawsuit.

Barrett also said parties can still be granted “complete relief” from an action, but didn’t instruct courts on how to best to do that.

Pildes said the factors attorneys may consider in deciding where to bring cases might now change, like whether a court is willing to hand down relief before a class is certified.

“Lawyers will take into account both the procedural and the substantive issues in trying to figure out what the best forum overall for them is,” Pildes said.

Favorable Courts

During the Biden administration, the practice of judge shopping came under strong scrutiny.

Single-judge divisions in Texas, home to conservatives like US District Judges Matthew Kacsmaryk in Amarillo or Reed O’Connor in Wichita Falls, were eyed by right-leaning groups looking for national orders blocking President Joe Biden’s policies.

While liberal groups don’t have analogous single-judge courts to file their cases, many of the lawsuits against the second Trump administration have proliferated in districts with a majority of liberal appointees, like the federal trial courts in Boston, Baltimore, and Washington.

Some district judges are still issuing broad injunctions against Trump administration actions, drawing the ire of the Justice Department.

Legal experts said that groups might seek to file lawsuits over the same policy action in several courts simultaneously. Groups including the ACLU and Democratic state attorneys general have already asked courts to certify nation-wide classes in challenges to Trump’s executive order that would end birthright citizenship.

Ahdout said that it may take time for courts to figure out what the “complete relief” standard looks like after the CASA decision. And Pildes said that until questions about what relief district courts can grant are resolved, he doesn’t expect attorneys to make dramatic changes on where they file lawsuits.

Other Factors

Ahdout said that parties might also seek judges who might permit discovery in a case, allowing them to access information about a policy or government action that could at least influence public opinion.

“I think plaintiffs will be searching for judges who are willing to treat the executive similar to other private parties in litigation for information,” Ahdout said.

Amanda Shanor, a professor at the University of Pennsylvania who previously worked on national litigation strategy for the ACLU, said filing before a specific judge can also be important for shaping litigation on a topic.

She pointed to the litigation on the legality of gay marriage, and then-US District Judge Vaughn Walker in the Northern District of California’s lengthy opinion that made 80 findings of fact in striking down California’s Proposition 8.

“Traditionally in our system, district courts decide facts,” Shanor said. She said that courts of appeals will typically defer to those facts, but the Supreme Court is more “hit or miss” on doing so.

Whether judge shopping will be permitted in the future is an open question. A federal judiciary advisory committee is weighing whether the courts should have a permanent rule against judge shopping.

The Judicial Conference, the federal judiciary’s policy-making body, last year adopted a non-binding policy against the practice, but some courts with single-judge divisions like the Northern District of Texas haven’t changed their case assignment practices.

“I still think judge shopping is going to be a problem,” Shanor said. “And particularly single-judge divisions is something that the judiciary or Congress should do something about.”