The onslaught of legal challenges to President Donald Trump’s early actions brought by federal workers and advocacy groups have found their way into mostly friendly courts, overseen, for the most part, by sympathetic judges.
These plaintiffs have employed a well-known, pervasive strategy used by both sides of the political aisle, known as forum or “judge shopping”– that is, to have a case tried in a certain district court, and one that falls under the jurisdiction of a U.S. appeals court with a certain political makeup.
This strategy serves a distinct legal purpose. While the Supreme Court is the nation’s highest court, most cases don’t make it there. That’s because the Supreme Court hears an average of less than 100 cases annually, according to federal judiciary data. In contrast, the 13 U.S. appeals courts handle an average of more than 50,000 cases per year – meaning that these courts often get to rule on the most pressing legal issues.
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The Supreme Court hears an average of less than 100 cases each year. (AP Photo/Mariam Zuhaib)
And while plaintiffs suing the federal government used to have to establish a local, geographic connection to the district where they were filing their lawsuit, Congress broadly moved to lift that requirement more than 30 years ago – allowing the practice to quickly gain prominence.
As president, Trump “is exercising Article II power to take care that our federal laws are faithfully executed,” Mike Davis, the founder and president of the Article III Project, or A3P, told Fox News Digital in an interview.
“That’s his constitutional duty. And that includes weeding out waste, fraud and abuse. That’s what he’s doing with Elon Musk and with DOGE,” said Davis, a former Supreme Court clerk for Justice Neil Gorsuch.
But recent years have seen a wave of new efforts to reform the system and stop the process of “judge shopping,” with detractors pointing to a spate of recent examples where cases were filed specifically in certain districts in an effort to yield more favorable outcomes.
It’s a strategy both Republican and Democrat plaintiffs have used with increasing regularity. Most recently, groups of Democratic-led plaintiffs filed three separate court challenges to Trump’s executive order seeking to ban birthright citizenship within the jurisdiction of the U.S. First Circuit Court of Appeals, or the Boston-based appeals court whose bench is composed primarily of Democratic-appointed judges.
Other groups seeking to overturn Trump’s early actions have focused on courts within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, which has a reputation for liberal decisions.
Judges on that bench moved unanimously to block the Trump administration’s birthright citizenship order from taking force, leaving in place the decision of a Seattle district court, and potentially kicking the matter to the Supreme Court for consideration.
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Fifth Circuit Court of Appeals courthouse in downtown New Orleans, Louisiana. (Rex Wholster via Getty Images)
Other notable examples include a wave of anti-abortion cases filed in the rural Texas town of Amarillo, where the sole federal judge, Matthew Kacsmaryk, is known for his anti-abortion beliefs and for siding on behalf of pro-life groups. (Texas is also under the jurisdiction of the Fifth Circuit Court of Appeals, where 75% of the 26 judges on the bench are Republican-appointed.)
Kacsmaryk’s attempt to ban the abortion pill, mifepristone, in 2023 was upheld but narrowed by the Fifth Circuit Court. It was later dismissed completely by the Supreme Court, which noted that the plaintiffs in the case lacked proper standing.
Still, judicial reform advocates have pointed to this case – and many others – as evidence of the lengths individuals will go to in an attempt to reshape the federal policy landscape by way of case law and legal precedent.
“Allowing plaintiffs to pick their judge is contrary to the bedrock federal court principle of randomly assigning cases to judges through an electronic version of drawing names from a hat,” Russell Wheeler, a nonresident senior fellow at the Brookings Institution’s Governance Studies program, wrote in an op-ed.
Demonstrators gather outside the Supreme Court. (Fox News Digital/Lisa Bennatan)
Davis, for his part, told Fox News that his organization, A3P, is currently working with the Senate Judiciary Committee to draft legislation to end the flurry of temporary restraining orders and preliminary injunctions that have come before single judges.
“The legislation will require a three-judge panel randomly assigned from around the country; a lottery system” to hear various cases and prevent the uptick in forum shopping, Davis said. Federal judiciary leaders and members of Congress have also introduced efforts within the last year aimed at stopping or curtailing the pervasiveness of judge-shopping.
Senate Democrats introduced a bill last spring that would require cases to be randomly assigned within a federal court district, though it has failed to gain traction in the rest of Congress.
Last March, the U.S. Judicial Conference, the body that sets policy for the federal courts, issued fresh guidance urging courts to assign certain high-profile cases at random in a bid to stop judge shopping and restore public trust in the court system.
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“The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge,” Judge Robert J. Conrad, the U.S. Judicial Conference secretary, said in a statement at the time.
Rather, he said, the feature “promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”