Legislation comes after judge shopping in Texas mifepristone ruling

U.S. Representative Deborah Ross (D-NC) and U.S. Senator Ron Wyden (D-OR) today announced the Fair Courts Act, legislation that makes it more difficult for litigants to seek out specific judges to guarantee their preferred outcome and requires a panel of judges to preside over cases that seek nationwide relief. 

"The dangers of judge shopping were on full display in Judge Kacsmaryk's unprecedented mifepristone ruling out of Texas,” said Ross, Vice Ranking Member of the House Judiciary Committee. “America was founded on the principle of equal justice under law, and the impartiality of judges and our court system is paramount to that fundamental promise. Nobody should have the power to choose who decides their case, especially when the ruling will have widespread consequences for all Americans. The Fair Courts Act would strengthen our justice system by limiting both the power of parties to choose individual judges and the power of individual judges to issue nationwide relief."

“It’s fundamentally unjust for a special interest group to play hopscotch with American courts in search of one biased judge predisposed to rule for them. And it’s alarming that one rogue judge in Amarillo, Texas – or anywhere – can make sweeping decisions that could harm millions of Americans. No single judge should have this kind of power,” said Wyden. “Today, we’re talking about mifepristone, tomorrow it could be birth control. Judge shopping is unfair and un-American. It’s time to restore fairness to our courts.”

There has been a rising trend of activist plaintiffs seeking to tip the scale in their favor by targeting partisan judges who will further their political causes, in an attempt to receive a favorable ruling for their case – a practice known as “judge shopping.” This tactic has been used in many high-profile cases to seek nationwide injunctions against the federal government or set aside the rules established by federal agencies. It was most recently used by anti-abortion litigants who strategically brought a case before a judge in Amarillo, Texas who they knew would rule in their favor as they sought to limit access to the abortion medication mifepristone. While injunctions can be useful tools to prevent harm when constitutional rights are violated or agencies act outside their authority, it also leaves room for abuse when left in the hands of politically-motivated judges. 

The Fair Courts Act addresses the weaponization of the court system by:

  • Prohibiting a district court from granting nationwide relief unless the request is heard by a panel of three judges. This prevents a rogue district judge from making sweeping decisions that could harm millions of Americans, while still allowing for relief to be granted when it is warranted to prevent harm.
  • Reining in the ability for litigants to hand pick specific judges to guarantee their preferred outcome, a practice known as “judge shopping,” by requiring certain cases filed in a federal court to be randomly assigned to judges within the district or state where the case was filed.
  • Increasing transparency in the way that cases are assigned to judges by requiring this information to be made available on the district court’s website. 

Ross will introduce the legislation in the U.S. House of Representatives today, and Wyden will introduce the legislation next week when the U.S. Senate is back in session.

A one-pager summary of the legislation can be found here.

A section-by-section summary of the legislation can be found here.

Bill text can be found here.