This took way too long, but it appears that Supreme Court Chief Justice John Roberts and the Judicial Conference have finally decided to crack down on the serious problem of judicial shopping in the federal courts. They’ve set a new policy that will hopefully result in a more random allocation of cases to judges.
Jurisdiction shopping has been a problem for quite some time. You could argue that the creation of the Court of Appeals for the Federal Circuit (CAFC) was a response to patent litigation that involved repeated jurisdiction shopping. Of course, rather than fixing the underlying problem, they just set up a single appeals court that would hear all patent cases, which resulted in a weird sort of “judicial capture” of the Federal Circuit.
And, rather than fix it, the judicial shopping just shifted a bit after CAFC was created. Specific district courts, initially in East Texas (first Marshall, then Tyler), established themselves as patent-friendly court jurisdictions, leading to all sorts of shenanigans. This included frequent patent litigants buying a skating rink and a literal bull to ingratiate themselves with the judges and juries. The Supreme Court tried to put a stop to this, though it took a few tries to sorta get it to work.
So, then, stuff shifted again, and we had the crazy situation of Judge Alan Albright. He literally started promoting his district court (in West, rather than East, Texas) as a good one for patent litigants to file in. He was the only judge in the Waco courthouse, so all such cases filed in Waco would get assigned to himself.
This became such a big issue that in 2021, two Senators, Pat Leahy and Thom Tillis, wrote a letter to Justice Roberts asking that something be done to fix this. In 2022, the Judicial Conference (led by Roberts) responded, saying it was aware of the issue, but didn’t seem to do much about it. In 2023, even the ABA spoke up about it.
And, by then, we saw that this kind of judicial shopping was happening beyond just the patent realm. Over and over again we’ve seen cases — especially cases involving culture war or politically charged topics — being filed in courts with just a single, or a very small number of judges, hoping to get one of the batshit crazy judges who will bless anything. Indeed, there are now a few judges, such as Terry Doughty, Matthew Kacsmaryk, and Aileen Cannon, whose names regularly show up in discussions about judicial shopping.
It’s becoming bigger and bigger news as the public is learning more and more about this type of judicial shopping, which undermines respect in the rule of law, as well as respect of the judicial system itself.
So, now, finally, years later, the Judicial Conference has said it’s going to start making a change. In certain types of cases, they will be randomly assigned to judges across the entire district, rather than limiting judicial assignments just to the specific court where the case was filed. This will increase (sometimes significantly) the pool of judges who might be assigned the case:
The Judicial Conference of the United States has strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit.
The policy addresses all civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” In such cases, judges would be assigned through a district-wide random selection process.
The key here is the “district-wide” random selection, as opposed to just in the specific court within that district.
It’s a little strange that this only applies to cases that are about bars or mandates on federal actions, but it makes a bit of sense, given that those have been the most high-profile cases of judicial shopping.
And the Judicial Conference isn’t being shy as to why they’re doing this. They know it’s a problem:
Chief Justice John G. Roberts, Jr., referenced this letter in his 2021 Year-End Report on the Federal Judiciary, calling for a study of judicial assignment practices in patent cases.
“Senators from both sides of the aisle have expressed concern that case assignment procedures … might, in effect, enable the plaintiff to select a particular judge to hear a case,” Roberts said. During the patent-case study, the Court Administration and Case Management Committee (CACM) determined that similar issues might occur in bankruptcy and other types of civil litigation. Public debate grew when several highly controversial lawsuits, seeking nationwide injunctions against federal government policies, were filed in single-judge court divisions.
In submitting the proposed policy to the Judicial Conference, the CACM Committee said that some local case assignment plans risked creating an appearance of “judge shopping.” The committee also noted that the value of trying a civil case in the nearest court division becomes less important when the impact of a ruling might be felt statewide or even nationally.
Of course, we’ll have to see how this actually plays out, and what new games litigants come up with to get around it. Because, if the past is any indication, this problem seems unlikely to fully go away. Maybe the courts will take another step towards ending it in another six years or so.
