Washington, DC – Anti-abortion activists strategically filed a lawsuit in a Texas court to challenge the approval of the abortion pill mifepristone, aiming to secure a favorable ruling. The judge overseeing the case, Matthew Kacsmaryk, appointed by former President Donald Trump, sided with the plaintiffs, sparking controversy and ongoing legal battles now before the Supreme Court.
This tactic, known as “judge-shopping,” employed by lawyers at the Christian conservative Alliance Defending Freedom, will become more challenging following a recent policy change by the federal judiciary. The U.S. Judicial Conference, during its biannual meeting, approved a new policy to assign cases randomly from a larger pool of judges when blocking state or federal policies in federal district courts.
Senate Majority Leader Chuck Schumer praised the new policy as a way to combat the practice of judge shopping, which allowed certain plaintiffs to manipulate the judicial system to their advantage. The issue became apparent in cases such as the mifepristone challenge, highlighting the potential for lawyers to exploit disparities in how judges are assigned cases in federal districts.
While cases are typically assigned randomly in each district, some districts have smaller sub-divisions with limited judge options. Concerns about lawyers selecting judges of their preference have persisted since the 1990s, but the increase in nationwide injunctions in recent years has exacerbated the problem.
During the Biden administration, an influx of cases challenging nationwide policies has been filed in Texas, raising further questions about judge selection. Judge Jeffrey Sutton of the 6th U.S. Circuit Court of Appeals noted that single-judge divisions initially served the purpose of handling local cases, but larger-scale policy challenges require a broader pool of judges for impartiality.
The Judicial Conference’s new policy now applies to cases involving state or federal laws, rules, regulations, policies, or executive branch orders, ensuring that judges receive guidance on random case assignment. While the policy aims to prevent judge shopping, it does not prohibit lawsuits in districts with judicial tendencies. In the Northern District of Texas, for example, most judges are Republican appointees, and their decisions are subject to review by the conservative-majority 5th U.S. Circuit Court of Appeals.