Authored by Benjamin Weingarten via RealClearInvestigations,
As the Trump administration faces substantial pushback in the courts, including an unprecedented wave of nationwide injunctions halting its policies, some are claiming that his opponents are tilting the scales of justice by selectively bringing their lawsuits before sympathetic courts in a practice called “forum shopping.” They note that three-quarters of the lower court justices who have blocked Trump policies were appointed by Democrats.
Gaming the federal justice system, however, is harder than it sounds because plaintiffs bring cases before courts rather than judges. Most federal courts have a mix of judges appointed by Democrats and Republicans. The plaintiff’s goal in forum shopping is to launch their suit in a district where they are more likely to draw a sympathetic justice – ideally, this district would also include an appellate court stacked with like-minded judges.
To see whether Trump’s adversaries are engaging in forum shopping, RealClearInvestigations analyzed 350 cases brought against the administration. We found that plaintiffs have brought 80% of those cases before just 11 of the nation’s 91 district courts. While Democrat presidents have appointed roughly 60% of all active district court judges, each of the 11 district courts where the anti-Trump challenges have been clustered boasts an even higher percentage of Democrat appointees. In several of these venues, the administration’s challengers are almost guaranteed that a judge picked by Joe Biden, Barack Obama, or Bill Clinton will preside over their case.
The analysis of these 350 cases, which covers all those identified in popular litigation trackers and RCI’s independent research as of this week, lends credence to claims that anti-Trump litigants may be strategically filing suit in courts where they are most likely to receive a favorable ruling – a practice that has been both pursued and decried by Democrats and Republicans.
RCI also analyzed three dozen cases in which judges imposed the most extreme restraint on the Trump administration by entering a nationwide or universal injunction – prohibiting the administration from enforcing its policy not only against the party bringing the case, but anyone, everywhere. The analysis shows that these injunctions have disproportionately emerged from Democrat-leaning courts where plaintiffs have brought the lion’s share of suits, and that Democrat-appointed judges are overwhelmingly responsible for ordering them.
This is consistent with other analyses indicating that Democrat-appointed judges have handed down the bulk of all adverse rulings against the Trump administration.
Trump critics note that Republican-appointed judges have also ruled against the administration. They contend that the courts have halted Trump’s policies at an unprecedented scale because of his administration’s unprecedented overreach.
Nevertheless, evidence shows that the anti-Trump cases used to stymie policies in areas ranging from immigration to DEI and the administrative state have overwhelmingly come before courts that, on their face, would appear unfriendly. Plaintiffs have brought roughly 60% of all cases against Trump in three district courts with a disproportionate number of active judges appointed by Democratic presidents: the District of Columbia, Massachusetts, and Maryland.
Plaintiffs filed 41% of all cases RCI identified – 143 in all – in the D.C. District Court, where Democratic presidents appointed 73% of active judges.
Given that the federal government is located within its jurisdiction, it is not surprising that plaintiffs would disproportionately bring cases in the D.C. District. The court, however, is seen by some on the right as hostile to President Trump. It includes several prominent judges – including Chief Justice Jeb Boasberg, Tanya Chutkan, and Beryl Howell – who have a history of issuing adverse rulings against the president and some of his confidantes, including Steve Bannon, Michael Flynn, and Peter Navarro. The court also conducted the Jan. 6 trials.
After the D.C. District Court, plaintiffs have brought the most cases before the Districts of Massachusetts and Maryland, whose rosters of active judges are each 90% or more Democrat-appointed.
The clash between the courts and the president has only intensified as Trump and his allies have publicly panned certain rulings, with some in Congress calling to impeach the judges who issued them.
There are several nuances to RCI’s analysis.
Though district courts generally assign cases randomly, each court has its own practice for divvying up cases.
Additionally, the pool of judges who may hear such cases extends beyond the nearly 680 active district court judges to include several hundred long-tenured judges, 65 years of age or older, who have taken senior status and work part-time. In 2024, such judges presided over 25% of all completed trials.
Some of the district courts in which plaintiffs have brought cases against Trump have a significant percentage of Republican-appointed judges on senior status. In the Western District of Washington, for example, where plaintiffs have filed 14 cases, Democratic presidents appointed all seven active judges. But 11 more judges in that district have taken senior status, eight of whom were appointed by either George W. Bush or Ronald Reagan.
Two such judges have entered universal injunctions in cases challenging President Trump’s policies. In Shilling v. U.S., Senior U.S. District Judge Benjamin H. Settle, a Bush appointee, ordered a preliminary injunction barring the administration from implementing its executive order “Prioritizing Military Excellence and Readiness,” which found gender dysphoria presumptively disqualifying for those in the armed services. And in Washington v. Trump, Reagan-appointed Senior District Judge John C. Coughenour issued a universal injunction in the form of a temporary restraining order barring the administration from implementing its executive order “Protecting the Meaning and Value of American Citizenship,” which would curtail the practice of birthright citizenship.
Nevertheless, in the nearly 40 cases RCI identified in which judges entered a universal injunction, Democratic presidents appointed more than four in five of those presiding:
Democrat and Republican administrations alike have faced challenges from plaintiffs in courts perceived to be favorably inclined towards their challengers.
In 2022, plaintiffs sued the Biden Food and Drug Administration over its approval of the abortion drug mifepristone in federal court in Amarillo, Texas. The odds were overwhelmingly in their favor that the case would come before the single presiding judge there, based upon the way the District Court for the Northern District of Texas assigns cases. The judge, an opponent of abortion, entered a nationwide injunction halting the policy.
Texas’ courts, alongside some others, often assign cases to divisions – or subdistricts – which may leave a single judge handling more than 50% of cases. Judges in that state reportedly entered injunctions blocking “immigration programs, transgender rights and labor policies from the Obama era,” the New York Times reported last year, which Democrats see as evidence of forum shopping.
Lamenting Texas’ Northern District practice, in April 2023, then-Senate Majority Leader Chuck Schumer (D-N.Y.) wrote to the district’s chief judge that it should randomly assign cases.
“Currently, a federal statute allows each district court to decide for itself how to assign cases. This gives courts the flexibility to address individual circumstances in their districts and among their judges. But if that flexibility continues to allow litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes, Congress will consider more prescriptive requirements,” Sen. Schumer warned.
Last year, the Judicial Conference of the United States, the policy-making body for the federal judiciary, issued guidance encouraging the district-wide random assignment of cases. That that guidance is non-binding speaks to Sen. Schumer’s point – a point Republicans are now emphasizing – that Congress ultimately controls the Article III courts.
To that end, federal lawmakers, sometimes on a bipartisan basis, have introduced legislation to curtail forum shopping – to no avail.
District court judges’ increasing willingness to provide universal relief – starting during the first Trump administration – has only further incentivized the practice for those who want to hamstring a president’s agenda.
With the Supreme Court poised to rule within weeks on the legitimacy of universal injunctions, an opinion reining in that remedy could decrease the impact of forum shopping.
