Justin Rex/AP Photo
Supporters of right-wing causes often seek a hearing at the federal courthouse in Amarillo, Texas, in an effort to invalidate federal laws.
For many years now, one of the most outrageous aspects of the American legal system—a competitive field if ever there was one—has been the practice of “judge shopping.” Interested parties can file lawsuits in particular locations and be certain or quite likely to draw a judge friendly to their case. This has played hell with federal policy in all sorts of arenas.
But this practice will be rolled back somewhat thanks to a recent decision from the Judicial Conference of the United States, which sets internal policies for the federal judiciary. Now, thanks to this change, any lawsuit attempting to overturn national legislation or regulation will be randomly assigned to one of the whole population of judges.
On the one hand, this a highly welcome reform that should reduce the amount of judicial overreach in this country. On the other, it’s an indicator of just how broken the other two branches of government have become, particularly Congress.
It’s hard to exaggerate how offensive judge shopping is to basic principles of the rule of law and democratic values. Government is supposed to be based on the consent of the governed, and the principal focus of the judiciary should be ensuring the law is applied in a consistent and coherent fashion rather than acting as an unelected legislature. That holds double when it comes to any one of 677 district court judges, who have no business whatsoever dictating terms to the people as a whole.
But with judge shopping, a random handful of extremists can file a lawsuit based on crackpot nonsense or actual lies, present their case to a carefully chosen friendly judge who will automatically rule in their favor, and seize control of some national policy.
Take a recent ruling from probably the most feral right-wing district court judge in the country, Matthew Kacsmaryk of Texas. (His district is situated such that if you file your case in Amarillo, you were guaranteed to get him, until this reform.) He recently heard a case from a father suing the government over a Title X program that funds family planning clinics around the country. Guidance from the Department of Health and Human Services in 2014 said that in order to be eligible for federal funding, such clinics should not notify the parents of adolescents who seek birth control. That guidance was codified in a regulation in 2021.
Kacsmaryk struck down that portion of Title X as unconstitutional, and vacated the 2021 regulation, despite the fact that the lawsuit was filed in 2020 before the regulation existed, and, indeed, despite the fact that the father did not even claim his daughter had ever actually sought birth control from one of these clinics, or intended to do so. Without some alleged harm, the man should not have had standing to file the case, but right-wing judges up and down the courts simply ignore that doctrine these days. You can even file a case based on a total fabrication and win before the Supreme Court.
Thanks to this change, any lawsuit attempting to overturn national legislation or regulation will be randomly assigned to one of the whole population of judges.
It’s a mark of how utterly out of control Kacsmaryk is that the notoriously right-wing Fifth Circuit appellate court reversed the part of his ruling striking down Title X and the other regulations he’d tossed that weren’t even mentioned in the lawsuit, while upholding the rest of it. (It’s also an indicator that conservatives are coming for contraception after killing Roe v. Wade.)
But Kacsmaryk isn’t the only judge who pulls this kind of thing. Even liberals have tried it now and again, though with far less success. And this leads to a structural problem: a drastic slowing of executive branch governance. Whenever the administration or an agency issues some regulation you don’t like, just file a dozen lawsuits with your favorite partisan hack judges around the country. Win just one of them, and you’ve halted the process in its tracks. To be sure, most of these rulings are amended or reversed on appeal, but that can take months or even years—sometimes enough to push past the next election.
It was such judges overturning national policy that motivated this change. “The current issue relates to nationwide injunctions or statewide injunctions,” Jeffrey Sutton, chief judge of the Sixth Circuit, who was appointed by George W. Bush, told Politico. It’s “a little hard to say you need one division of one state to handle it since, by definition, it extends at a minimum throughout the state and possibly to the whole country.”
You know something has gone very wrong when George W. Bush appointees are calling you out.
So that is all to the good. But it should be emphasized that this is a modest step. It’s not clear yet how the new system will be enforced, and hence whether it will be possible for a certifiable maniac like Kacsmaryk to ignore it. Even if he can’t, it will probably only cut down on right-wing legal groups filing nuisance lawsuits, not stop them. After all, you still might draw Kacsmaryk in his district, so there’s still an incentive to try.
It also does nothing about the principle of unelected judges seizing control over national policy. If district court judges draw a case, they can still issue national stays and injunctions, and of course the Supreme Court can do whatever it wants. Indeed, I would guess that one reason for this decision is other judges worrying that Kacsmaryk’s wild overreach was doing long-term damage to the power and prestige of the judiciary. What he was doing was no more legitimate than, say, Shelby County v. Holder, which negated the core of the Voting Rights Act, but his decisions were too obviously the product of harebrained right-wing conspiracy culture to have the veneer of politesse that John Roberts (Shelby’s author) likes.
Ultimately, we can’t expect the judiciary to truly regulate itself. As Thomas Jefferson once wrote, “Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.” When feral judges arrogate the powers of Congress to themselves, the legislature is supposed to slap them down. Until it does, the problem of judicial tyranny will remain.
