“Forensic shopping”, a very American practice

(Washington) In the United States, lawyers are accustomed to filing suits in courts that are supposed to be favorable to them, but the tradition of “judicial shopping” has come under new criticism after a series of highly political rulings.

When actor Johnny Depp decided to sue his ex-wife Amber Heard – because she presented herself as a victim of domestic violence in a column published by the washington post – he had not taken legal action in California, where he lives.

The star had filed a complaint in the state of Virginia, where defamation laws are more favorable to plaintiffs. He relied on the fact that the daily’s servers and printing works are located there.

“A plaintiff always chooses the most advantageous forum for him, on the basis of several criteria relating to practical aspects, procedures or if he thinks that his judges will be receptive” to his file, explains to AFP Bruce Green, professor at Fordham Law School.

If the plaintiff can choose his court, he is however not supposed to choose his judge, especially at the federal level. Federal magistrates are indeed generalists and the rule is that the files that arrive in their court are distributed randomly.

But in some states, and particularly in Texas, geography has introduced a bias: “There are a lot of places that are far from everything, so there are small divisions with a single federal judge,” says Joshua Blackman , professor of constitutional law at the University of South Texas.

“Extremist”

This is the case of Amarillo, in northwest Texas, where Matthew Kacsmaryk is the only federal judge. Before being appointed to this post by Donald Trump, he was a lawyer for a Christian right-wing organization and displayed ultra-conservative views.

Strategically, opponents to abortion created in August a new coalition “Alliance for hippocratic medicine” and domiciled it in Amarillo. Three months later, they filed a complaint against the abortion pill, with the certainty that it would land on Judge Kacsmaryk’s desk.

On Friday, he proved them right by deciding to suspend, from April 15, the marketing authorization for mifepristone (RU 486).

His decision sparked strong emotion among Democrats, with their Senate leader Chuck Schumer choking on the idea that “right-wing activists could have chosen an extremist magistrate” to obtain a decision valid for the whole of the United States. .

“Forensic shopping” has long been seen as innocuous, but in recent years it “has focused more on matters of national interest with drastic consequences”, which raises new concerns, notes Bruce Green.

Before Judge Kacsmaryrk, other magistrates have indeed issued “national injunctions” to block policies adopted by the governments of Barack Obama, Donald Trump or Joe Biden, in particular in matters of migration or the rights of transgender people.

“Drastic”

For Joshua Blackman, two factors have fueled this trend.

In 2013, the Senate, which is charged by the American Constitution to confirm the federal judges appointed by the presidents, changed its rules: the magistrates no longer need more than 50% of the votes of the senators against 60% previously.

Since they no longer need the support of opposition politicians, the presidents “appoint judges further from the center […] which are more marked ideologically”, emphasizes the professor.

At the same time, he says, state attorneys general – who are elected – “have become more and more aggressive towards the executive branch” if it is not of the same political color.

That of Texas, the Republican Ken Paxton who, in two years, has filed a complaint 26 times against measures of the Biden administration, including seven in Amarillo, embodies the excesses of “judicial shopping”, according to law professor Steve Vladeck .

This practice “is an old problem […] but what Mr. Paxton and others are doing is far more dangerous” for the rule of law, the expert wrote in an editorial published by the New York Times.