This post is part of a symposium on the Law and Political Economy of Civil Procedure. Read the rest of the posts here.
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The rule of law is in peril. The January 6th insurrection was a physical manifestation of misplaced defiance, a rejection of our civil norms, and an exercise of immense privilege. To some, though, it was a justifiable rebellion and a statement of rugged individualism. The divide over this day is perhaps the most notable indication that the shared norms holding together our country are fraying, but a similar divide is reflected and embodied in a less chaotic venue: our nation’s federal courts. In short, the federal court system and its judges are at a crossroads between collective independence and individual insolence. The courts, like the country, are struggling to govern themselves.
Recent litigation regarding the FDA’s approval of the abortion drug mifepristone, as well as its judicial and political aftermath, demonstrate this rift. By filing their complaint against the FDA in Amarillo, Texas, a coalition of anti-abortion rights groups ensured the case would be assigned to Judge Matthew Kacsmaryk, a notably conservative federal district judge and the only one in his division. When the plaintiffs emerged victorious, critics decried the plaintiffs’ choice of forum, noting that their contacts with Amarillo were slim to none. Proponents of the case, meanwhile, argued that the plaintiffs were engaging in an acceptable litigation strategy. The story so far is familiar: forum-shopping, and more specifically judge shopping, are not new phenomena, and courts have long wrestled with the degree to which forum shopping is legitimate strategy. But this episode, and specifically the response to it, highlights a new problem—the judiciary’s struggle to regulate itself.
Congress called on the judiciary to respond, to govern itself more effectively or else Congress would. In response, in March of this year, the Judicial Conference, the “policy-making body” for the federal courts, adopted a policy “governing random case assignment.” In short, the policy declared that where a civil action would result in nationwide relief against a state or federal law or policy, “the judge would be assigned through a district-wide random selection process.” The committee observed that, unlike localized cases, an action implicating an entire state or nation did not need to be heard in the nearest court division. And cases with such broad implication would benefit from a system that assured judges were not hand-picked by the parties. The Conference noted that its judge shopping decision was not just in response to Congressional calls for action, but also responsive to the Supreme Court and Chief Justice Roberts’s previous requests to review this very issue.
Indeed, in his 2021 End-of-Year Report, Chief Justice Roberts, acknowledging recent challenges to judicial integrity, delineated a responsive plan. Among other things, he directed the Judicial Conference to explore allegations of judge shopping in patent cases. This issue of judicial administration, Roberts observed, provided “another good example of a matter that self-governing bodies of judges from the front-lines are in the best position to study and solve.” Roberts connected his defense of self-regulation to what he called “decisional independence,” which he argued “is essential to due process, promoting impartial decision-making,” on the grounds that the “[j]udiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government.”
In other words, Chief Justice Roberts connected judicial independence and neutrality to the judiciary’s ability to self-govern. Yet, as the response to the Judicial Conference’s policy regarding judge shopping has demonstrated, this argument is severely mistaken. Almost immediately after the Judicial Conference shared its judge shopping policy, the judges in the Northern District of Texas rejected it, explaining that their district would not “make any change to our case assignment process at this time.” This refusal was notable, in part, because district courts had uniformly followed past Judicial Conference pronouncements. This response also ratcheted up political posturing, with US Senators making opposing public statements and proposed legislation.
This episode is but one example of the federal judiciary’s struggle to effectively govern itself from the inside. It demonstrates that the federal judiciary, as an institution, is moving away from concern for its collective identity as an independent branch towards an emphasis on its independence as individual judges. This shift from “institutionalists” to “individuals” brings into focus the fallacy of both neutrality and free market values.
First, like many judges, Chief Justice Roberts’s “balls-and-strikes” understanding of his day job permeates his world view and his overconfidence in neutrality. While the Northern District of Texas might eventually adopt the Judicial Conference judge shopping policy, its automatic rejection is at least in part ideologically motivated. That the judges in that district had the temerity to push back so publicly is further evidence that members of the judiciary are viewing themselves as individuals, not as a collective. Emboldened by a climate steeped in standing up to authority, these judges have demonstrated their lack of respect for the very self-governing system of which they are a part.
Second, and relatedly, Chief Justice Roberts’s vision of institutional independence relies on the premise that outside regulation will only work to impede the independent work of the judiciary. The 2023 self-adopted Supreme Court ethics rules and the Court’s foray into self-regulation with respect to the handling of allegations of judicial harassment by federal judges are further examples of this approach. These examples reflect a fidelity to a free market theory of institutions, which in simplest terms, holds that players will maximize value for the individual and the whole, as long as government regulation does not impede them. The competition, in and of itself, is sufficient. Yet the rejection of Judicial Conference guidance, Justice Alito’s recent flag controversy and his refusal to recuse, as well as the continued failure of the judiciary to appropriately respond to allegations of harassment from court employees, exemplify the degree to which the judiciary is unable to effectively regulate itself, calling into question the efficacy of the free market framework in this context.
The image of fellow Americans breaking down barricades, storming into the Capitol, and defiling such an important symbol of our democracy might be fading into distant memory. But the ideological divide that moment represents is omnipresent. We all understand that there is an assault on the rule of law. It is now incumbent upon our federal courts to shore up their legitimacy by recommitting to the power of the institution and its collective values above all else.
