The Judicial Conference of the United States recently directed federal district courts to assign cases that seek broad relief, such as a challenge to a federal regulation, randomly on a district-wide basis. The judicial conference’s guidance follows similar statements by the American Bar Association, proposals to amend the federal rules, and proposed legislation. 

In any other era, this minutia of court administration would have been obvious and downright boring. Random case assignment, particularly in the federal courts, has been the hallmark of federal court administration for decades. Every federal court uses random case assignment as the baseline rule, with limited departures permitted. For example, a court might consolidate a newly filed case that is closely related to another case in the interests of judicial efficiency. In the interests of convenience to litigants, many courts also permit litigants to file in a courthouse closer to their home. But when these specific considerations do not apply, it is thoroughly unremarkable to requiring litigants to adhere to this random assignment norm, particularly when they are bringing lawsuits that have broader implications for the public. 

Surprisingly, however, there was vocal pushback to this new guidance from a handful of people, including a senator, a few judges, and a single law professor, who perceive that this new policy would end a practice of judge-shopping by the State of Texas in its challenges against federal agency action. 

Under the current system, Texas can sometimes pick the specific federal judge who will hear and decide its lawsuits by exploiting local rules that allow litigants to file new cases in particular divisions (a subunit of federal districts) that have perhaps only a single judge assigned. The idea behind divisions of a federal district court is an access to justice one: states are large, and regional courthouses are made available for plaintiffs who would be inconvenienced from having to travel far to the main federal court house. Texas is not the plaintiff these divisions were created for, but by choosing to file in one of those smaller divisions, Texas can guarantee (or nearly so) the judge that will be assigned. There has been no suggestion that allowing the State to file in these divisions furthers some neutral aspect of court administration, such as convenience—the sole reason is to pick a judge believed to be more favorable to the set of arguments advanced by the State. And Texas  does so openly and with some regularity. 

Outside of Texas, judge-shopping is universally condemned. As the Chief Justice acknowledged in a different context, the sort of maneuver used by Texas creates a “concern that case assignment procedures allowing the party filing a case to select a division of a district court might, in effect, enable the plaintiff to select a particular judge to hear a case.” If one enters the phrase “judge-shopping” into a Westlaw or Lexis case search, one will quickly find scores of decisions excoriating attorneys for engaging in the practice. E.g., Commonwealth v. Gebo, 489 Mass. 757, 769, 188 N.E.3d 80, 92 (2022) (“The practice [of judge-shopping] is inherently unfair to other litigants, undermines public confidence in the judiciary, and properly has earned the condemnation of courts across the country.”). Even when an attorney complies with all applicable court rules, taking a step solely to pick a more favorable judge can be considered a breach of an attorney’s ethical obligations. E.g., Grievance Adm’r v. Fried, 456 Mich. 234, 244, 570 N.W.2d 262, 267 (1997). In extreme cases, people have gone to jail. United States v. August, 745 F.2d 400, 402 (6th Cir. 1984) (conviction of court clerk for directing cases to particular judge). It is not okay, and it should be guarded against regardless of who the actor is or their ideological bent. 

Judge-shopping is considered problematic for a few reasons: “First, because different judges might decide the same case in predictably different ways, judge-shopping by one party can influence case outcomes in a way that is unfair to the non-shopping party. Second, judge-shopping creates a perception of partiality that undermines the legitimacy and credibility of the courts.” When a litigant seeks broader relief, such as striking down a federal regulation or state statute, the public also has an interest in maximizing the chances of an average, rather than an outlier, ruling. 

Courts correctly perceive that allowing a litigant to select their judge threatens the premise of the court system: neutral application of legal principles, rather than quirks of personality. Indeed, courts have even suggested that a system allowing a litigant to select a judge could violate due process. Tyson v. Trigg, 50 F.3d 436, 438-42 (7th Cir. 1995) (noting “if Congress were to pass a law which provided that the U.S. Attorney in each district shall designate the federal district judge to preside in criminal cases, or even that the Environmental Protection Agency shall designate the federal district judge to preside in civil cases under the Clean Air Act, the law would raise profound issues under the due process clause”); see also, e.g., Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987) (“The suggestion that the case assignment process is being manipulated for motives other than the efficient administration of justice casts a very long shadow.”). 

Defenders of Texas’s action say that judge-shopping is not materially different from forum-shopping—where a litigant chooses the forum that they believe will be best for their case, perhaps due to precedent or personnel. Judge-shopping has always been treated differently however; picking a pool of judges is categorically different than picking the specific judge who will hear a matter.

More fundamentally, forum-shopping is not something to be celebrated, but only tolerated as a necessary evil in some situations. Congress and the courts regularly take measures to limit it whenever choice of a forum does not further some countervailing consideration, as in allowing a litigant to choose a forum closer to home. In challenges to rulemaking, for example, Congress has decided that multiple petitions challenging the same regulation should be assigned randomly to the circuit. Others have proposed assigning cases randomly on a nationwide basis to prevent forum-shopping when a litigant seeks broad relief against federal or state policy.

The Judicial Conference’s latest measure is a simple application of well-settled principles that judges should be assigned to cases randomly, not by the litigants themselves. 

Joseph Mead is Senior Counsel at the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center.