The abortion pill case that landed before the Supreme Court on Tuesday didn't get there by accident. It was "a result of the 'judge-shopping' phenomenon," CNN said, a practice in which politically minded plaintiffs file lawsuits before friendly judges. The case challenging FDA approval of mifepristone was originally filed in Texas, and was initially decided by U.S. District Judge Matthew Kacsmaryk, an appointee of Donald Trump "who had previously worked for a religious liberty legal organization" and is well-known for his socially conservative leanings.
This week's court hearing came on the heels of a new policy intended to crack down on judge shopping, Politico said. The policy would require random judge assignments in cases seeking to block state or federal laws — making it more difficult for plaintiffs to game the system by filing cases in a particular judge's jurisdiction. "I'm really proud that we did this," said 6th Circuit Chief Judge Jeffrey Sutton.
Conservative officials don't share that pride, Reuters said. U.S. Circuit Judge James Ho suggested the new policy is the result of — not an answer to — politicization of the judicial branch. "Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure," he said in a statement. Similarly, Senate Minority Leader Mitch McConnell (R-Ky.) called the new policy "half-baked 'guidance' that just does Washington Democrats' bidding."
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"This policy is a massive victory for the Biden administration," Ian Milhiser said at Vox. Under the previous policy, "Kacsmaryk's courtroom became a magnet for lawsuits attacking federal policies" by conservative figures like Texas Attorney General Ken Paxton. And that faith was rewarded: Kacsmaryk "proved to be a rubber stamp for nearly any court order that a conservative litigant asked him to issue." Cracking down on judge shopping "will quell at least some concerns that federal litigation is a rigged game."
"In reality, the purported policy did the Left's bidding," Carrie Campbell Severino said at National Review. The policy will prevent plaintiffs from aiming their cases at specific judges; it won't stop them from filing in "ideologically homogeneous districts" where liberal judges are likely to land the case no matter how randomly they're assigned. Democrats can shop for judges too, after all: Attorneys in Alabama were recently sanctioned for their efforts to land a transgender health care case before a liberal judge. Which makes the new policy look "foolish."
The new policy, however, doesn't have that much force: It's nonbinding "guidance" by the U.S. Judicial Conference, said The Boston Globe in an editorial. The blowback from Republicans, however, "amounts to a tacit admission that they support the abuse of the legal system for partisan ends." Reducing the amount of judge shopping is a good idea, and the policy is a good start. "If federal judges don't follow it, Congress should make them."
What next?
Senate Majority Leader Chuck Schumer (D-N.Y.) is trying to bring pressure to bear. He wrote to the chief judge of the Northern District of Texas — where many conservative cases are filed — to urge him to follow the new policy's guidelines in assigning new cases suing the government, Reuters said. "This new rule," Schumer said, "would rebalance our court system and restore America's trust in judicial rulings."
In the meantime, it's not at all clear that "judge shopping" will work out for anti-abortion forces in the mifepristone case. Supreme Court justices on Tuesday sounded reluctant to strike down access to the abortion pill, at least on the basis of the case before them. The New York Times said the three justices appointed by Trump — all anti-abortion conservatives sounded reluctant to strike down FDA approval of the pill "so long as doctors with objections to providing abortions are not forced to participate in them." The court is expected to issue its ruling in June.
