By Kit Beyer, FTC law clerk

At the American Bar Association’s meeting on Feb. 3, its House of Delegates adopted resolutions addressing judicial forum shopping (Resolution 200) and Supreme Court ethics (Resolution 203).

Both are sound recommendations that, in keeping with the ABA’s overarching mission, would promote public trust in the nation’s justice system.

First, Resolution 200, submitted by the ABA’s Litigation Section, would urge Congress “to pass federal legislation to eliminate federal case assignment mechanisms that predictably assign cases to a single United States District Judge without random assignment” in cases aiming to block state or federal laws and regulations from taking effect.

Instead, the resolution suggests, Congress should “provide that in such situations, case assignments or reassignments be made randomly and on a district-wide rather than division-wide basis.” The effect would be to limit litigants’ ability to pick which individual judge hears their case.

Previously, Fix the Court worked with Rep. Mikie Sherrill on the End Judge Shopping Act, which would require civil actions seeking nationwide injunctions — court orders that would be enforceable across the country, rather than just the parties pursuing the case — to be brought in multiple-judge divisions. Additionally, we endorsed Sen. Chuck Schumer’s similar Stop Helping Outcome Preferences Act, another legislative effort to limit forum shopping. 

Not only does Resolution 200 echo these proposals, it also accords with basic common sense and fundamental legal principles. Justice must be done and seen to be done. But one party selecting a judge to adjudicate their case, based on that judge’s perceived political leanings, can only shadow the fairness of the ultimate outcome with doubt and distrust.

Litigants will, of course, naturally seek out favorable judicial venues, but the inevitability of a strategic incentive to forum shop is no argument against imposing reasonable limits on the practice, which Resolution 200, if implemented, would accomplish.

Then there is Resolution 203, submitted by the New York City Bar Association and co-sponsored by the Seattle-based King County Bar Association, which calls on the Supreme Court to adopt a binding code of ethics as strict as the Code of Conduct for all other federal judges and that ” includ[es] a Supreme Court-adopted appropriate enforcement mechanism.”

This past July, FTC’s Gabe Roth gave a presentation to the NYC Bar committee that drafted the resolution.

A report accompanying the resolution points to a constitutional grounding for enforceable ethics in the Fifth and Fourteenth Amendment’s guarantee of due process of law, as glossed by Supreme Court precedent like Caperton v. A.T. Massey Coal Co. (2009).

These arguments, along with others raised in the report, deserve the justices’ consideration.

Fix the Court supports these resolutions, and we hope that the ABA’s adoption of them will be a step along the way to further progress.