President Donald Trump has faced various legal setbacks early in his second term which have been exacerbated through court shopping by his opponents, but a recent Supreme Court decision could help offer some relief.
Court shopping, also known as forum shopping or judge shopping, has been a frequently used tactic by opponents of the Trump administration seeking favorable rulings and quick blocks of key parts of Trump’s agenda.
The tactic involves parties suing the administration to file their lawsuits in a federal judicial district with a heavily liberal bench of judges. Because the federal government has jurisdiction over the entire country, groups can file lawsuits against the government in a wider array of districts than in typical cases.
Most challenges and blocks to Trump items occur in liberal judicial districts
Lawsuits challenging Trump executive orders and actions have been filed in federal districts across the country, but several courts have been frequent venues for the opponents of Trump’s agenda to file against the administration.
The U.S. District Courts for the District of Columbia, the District of Massachusetts, the Northern District of California, the District of Maryland, and the Southern District of New York, have popped up as the most common venues for legal challenges against the Trump administration, they also happen to be courts where a Democrat appointee is more likely to preside.
In the District of Columbia, there are only four Trump-appointed judges, while the rest of the bench is dominated by appointees of former Presidents Joe Biden, Barack Obama, and Bill Clinton, while the District of Maryland only has one Trump appointee and a bench similarly stacked with Democrat-appointed judges. The Southern District of New York also only has four Trump appointees, while the District of Massachusetts and the Northern District of California have no Trump-appointed judges on the bench.
Zack Smith, a former Assistant U.S. Attorney in the Northern District of Florida and Senior Legal Fellow at the Heritage Foundation, believes liberal groups and opponents suing Trump have been “strategic in where they filed their lawsuits.”
“Many of these lawsuits are being filed in places like California, Washington State, New York, Boston, other courts around the country where I suspect litigants are more likely to get a favorable with those challenging these policies, expect to get a more favorable judge who might be more inclined to rule in their favor,” Smith told the Washington Examiner.
When Gov. Gavin Newsom (D-CA) launched a lawsuit against Trump’s deployment of the National Gaurd to Los Angeles, he and other state officials filed a lawsuit in the U.S. District Court for the Northern District of California. The state officials filed in that court rather than the eastern district of California, where the state capital of Sacramento is located, or in the central district of California, where Los Angeles is located.
The Justice Department argued in a court filing that the state had “engaged in forum shopping in making San Francisco the venue for their lawsuit about Los Angeles,” requesting discovery in the case be conducted in the Central District of California.
“Nearly every fact relevant to this dispute occurred in the Central District of California, and the consequences of the final judgment entered in this case will be felt by those who live in that district. But Plaintiffs nonetheless chose to sue in San Francisco, which has emerged as a favorite forum for those challenging this administration’s policies,” the DOJ argued in a June 25 filing.
“Their gamesmanship at the expense of citizens impacted by the case and witnesses should not be permitted,” the filing continued.
Judge Charles Breyer, a Clinton appointee, rejected the bid to transfer the discovery to the other court, noting it would force the other court to quickly get up to speed on the case and called the DOJ’s accusation of court shopping “conclusory.”
A major issue with court shopping is that groups and persons bringing lawsuits are inclined to bring them in venues they believe can hear the case and may be favorable for their desired outcome.
“I think litigants are always going to seek to find the most favorable form they can to bring their claims in their claims that this was part and parcel of litigation process,” Smith said.
Court shopping is not new but it has exploded during Trump 2.0
While conservatives and Trump allies have raged over court shopping early into his term, as John Shu, a constitutional law scholar who served in both Bush administrations, noted to the Washington Examiner, that “sometimes, but not as often, conservatives are guilty of the same” tactics.
“There’s plenty of hypocrisy to go around on both sides,” Shu said. “I think this court shopping business is really terrible.”
During the Biden administration, the U.S. District Court for the Northern District of Texas became a popular place for conservative groups to file lawsuits, hoping to have Judge Matthew Kacsmaryk, a Trump appointee, assigned to their case.
Kacsmaryk granted legal wins and universal injunctions to conservative groups in several key cases during the Biden administration, including maintaining the “remain in Mexico” policy from Trump’s first term and halting the FDA approval of the popular abortion pill mifepristone.
“He’s pretty conservative, and before he became a judge, when he was an advocate, he had written plenty of articles about being pro-life,” Shu said.
“So [the Alliance for Hippocratic Medicine] sued there, and obviously they got their nationwide injunction on mifepristone. They eventually lost at the Supreme Court on standing, but they still managed to get their district court nationwide injunction,” Shu added. “When they did that all the liberals were upset about nationwide injunctions.”
During the Biden administration, left-leaning law professors, scholars, and politicians raged against the tactic. Georgetown University Law professor Stephen Vladeck, writing for the New York Times in 2023, that Texas Attorney General Ken Paxton had “made the loophole into an art form” with getting his cases before Kacsmaryk.
Justice Elena Kagan, a part of the liberal wing of the high court, expressed her concern over forum shopping and district courts issuing universal injunctions to halt presidential or congressional actions during a talk at Northwestern University’s law school in 2022.
“It just can’t be right that one district judge can stop a nationwide policy in its tracks, and leave it stopped for the years that it takes to go through normal process,” Kagan said, lamenting how people “forum shop” which district court they file in.
When Trump returned to power in January, and the flurry of cases were filed against Trump in liberal judicial districts, much of the uproar from the legal left-wing over forum shopping has quitted, as some legal scholars argue it has become a more prevalent problem in the past 6 months.
“There’s a particular focus on several lawsuits that were filed during the Biden administration in Texas, in front of Judge Kacsmaryk, there’s a lot of anger and frustration expressed by many on the left because of that,” Smith said, while noting where liberal groups have filed lawsuits during the second Trump term.
“It looks like the left has engaged in those same types of strategic decisions, trying to find the friendliest forum to follow their cases in, and yet, you haven’t heard the same type of outcry that you heard from many of the commentators that commented on this during the Biden administration,” he added.
Shu noted how liberal groups are more aggressive with the tactic of court shopping, but that the significant number of liberal courts where those groups can file also exacerbates it.
“It’s really out of hand, and in the past, both conservative and liberals have gone forum shopping, court shopping, but the liberals are super aggressive about it, and I think it’s because they have more judges,” Shu told the Washington Examiner. “They have more jurisdictions where they can file to get the results they want.”
Supreme Court ruling on universal injunctions should help curb court shopping
While there are no firm ways to end the abuse of forum shopping, the Supreme Court’s decision last month limiting the use of nationwide injunctions is an “important win” in curbing the practice, Smith told the Washington Examiner.
The Supreme Court ruled 6-3 in Trump v. CASA that universal injunctions, blocking laws or policies from being enforced against anyone, “likely exceed the equitable authority that Congress has granted to federal courts.” The ruling, in a case which originated out of a trio of universal injunctions against Trump’s birthright citizenship order, has taken a key power out of district courts’ hands.
Smith said he hopes the high court’s ruling will “ameliorate some of the concerns about judge shopping or foreign shopping” by providing the death knell to universal injunctions. He is optimistic it will lower the stakes of which forum a case is heard in.
“The stakes are much higher if you can get a single federal district court judge from anywhere in the country to issue a nationwide injunction, and so if that tool is taken away, hopefully that might lower the temperature, lower the stakes around some of the forum selection that we’ve seen so far,” Smith said.
SUPREME COURT’S DEATH KNELL TO UNIVERSAL INJUNCTIONS CHANGES TRUMP LEGAL LANDSCAPE
Shu also agreed that the decision in Trump v. CASA is a positive development, but with other avenues for sweeping relief, including class action lawsuits, court shopping may still persist in the legal battles against the Trump administration.
“I think it’s a good thing that the Supreme Court ruled the way it did on nationwide injunctions, and I hope we will see a reduction in forum shopping and court shopping,” Shu said.
“Only time will tell,” Shu added, “but I certainly hope it happens.”