The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Forum Shopping in California

Just leave your heart, and nationwide injunction, in San Francisco.


California, like Texas, is a big state. And there are many districts and divisions in which the California Attorney General can file suit. Perhaps the most logical choice would be the Sacramento Division of the Eastern District of California? That's where the state capitol is located after all. At least based on my recollection, during the Trump years, the California Attorney General did not choose this venue. Why could this possibly be? Well there are six district judges in that duty station: three were appointed by President Obama, and three were appointed by the Presidents Bush. 50/50 is lousy odds. But you know who did file suit against California in Sacramento? The United States Attorney General, who challenged California's sanctuary laws in the state capitol. He was willing to take his chances there. Anything is better than the city by the bay.

Based on my recollection, the California Attorney General would routinely file strategic cases in the San Francisco division of the Northern District of California. And, wouldn't you know it, 100% of the judges in that division were appointed by Democratic presidents. All of them. Presidents Trump and George W. Bush had zero nominees to the San Francisco division. And given that these judges had to survive the blue slip process led by Senator Dianne Feinstein, I doubt these judges were closet conservatives. For example, one of President George H.W. Bush's nominees to the San Francisco division was none other than Judge Vaughn Walker, who presided over the Prop 8 case. Indeed, I suspect that many of the Reagan, Bush 41, and Bush 43 district court appointees in California were in fact moderates-leaning-liberal, in order to get the blue slip. It's a miracle that St. Benitez made it through in San Diego. Alas, he is always under attack, as his Second Amendment opinions are automatically en banc'd by circuit rule (or something like that).

For the California Attorney General, there is no need to judge shop or forum shop. Just leave your heart, and nationwide injunction, in San Francisco.

There are other examples, of course. The New York Attorney General could file strategic suits in Albany, the state capital. But it routinely files in the Southern District of New York. By contrast, conservative litigants challenge COVID restrictions and gun control laws in Albany. There is a 50/50 shot at drawing a Republican-appointed judge. The Maryland Attorney General could have sued Trump over the Emoluments Clause in the Baltimore division of the District of Maryland, but he chose the Greenbelt division. Lo and behold, all the judges in Greenbelt are Democratic appointees. In New Jersey, the Attorney General recently tried to transfer a Second Amendment from a Trump appointee to a more favorable judge. Don't forget liberal judge shopping in Texas to the Austin and Laredo divisions. And so on.

All litigants carefully choose their forums, including state Attorneys General. I find this debate over forum-shopping nearly as exhausting as counting how many times the Supreme Court takes action on the emergency docket. Sing it Tony.