Washington — The U.S. Supreme Court is set to deliberate on a legal phenomenon that some critics term “judge shopping,” where litigants seek out courts believed to be favorable to their case. The practice involves a strategic selection of venues seen as more likely to provide sympathetic judicial ears to specific legal challenges.
This method has been employed to varying extents by both ends of the ideological spectrum. However, recent strategies deployed by business sectors, conservative factions, and several republican state attorneys general have predominantly homed in on the Fifth Circuit Court of Appeals, spanning Louisiana, Texas, and Mississippi, as their venue of choice. This circuit is noted for its conservative leaning, with 12 of the 17 active judges being Republican appointees, and half of those selected by former President Donald Trump.
Stephen Vladeck, a law professor at Georgetown University, describes this trend as more than mere judge shopping; it’s an act of “circuit shopping,” with plaintiffs opting for jurisdictions that best align with their perspectives, particularly at the conservative Fifth Circuit. The Supreme Court has picked up on this pattern, with approximately 23.4% of its cases reviewed this term originating from the Fifth Circuit. Some justices have subtly shown signs of irritation over this circuit’s pronounced assertiveness in the kinds of cases it tends to favor.
The case currently up for Supreme Court review does not question the validity of rules set under the Clean Air Act by the Environmental Protection Agency, but rather the legal venues for challenging these regulations. The contention by conservative groups is their right to choose appeal courts favorable to their cause, often the Fifth Circuit. Conversely, the Biden administration insists on adhering to federal statutes that designate nationally applicable regulatory challenges to the U.S. Court of Appeals for the District of Columbia.
This interpretative conflict was previously adjudicated in favor of the administration’s stance by the Tenth Circuit Court of Appeals, which directed a related case to the D.C. Circuit. This pending Supreme Court review could potentially resolve these jurisdictional conflicts and perhaps subtly rebuke the Fifth Circuit’s selections.
Several justices, including Chief Justice John Roberts, Justice Clarence Thomas, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson, have ties to the D.C. Circuit—Kavanaugh having served the longest tenure with 12 years. Their prior experiences may influence their perspectives on the current dispute. As the case unfolds, the Court’s decision could set a significant precedent affecting how and where future regulatory challenges can be contested, potentially impacting the landscape of federal appellate litigation.
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