Gaming venue is a time-honored endeavor for lawyers. Who doesn’t try to find the most amenable court possible to pursue their claim? Of course, courts don’t always play along, sending you back to where you should have been in the first place, if not dismissing your case as a reminder that games have losers. And now Congress wants in on the action.
Court picking is when Congress uses its authority over federal-court jurisdiction to stuff politically sensitive cases from throughout the country into one court that leans its way, to be buried there for as long as possible. Court-picking’s evil genius is its stealth. Americans would notice four new justices, but not changes to technocratic statutes that excite only civil-procedure professors. Despite featuring in Congress’s most radioactive bill—the so-called For the People Act, or H.R.1, which would transform elections and limit Americans’ rights to speak about them—court-picking has escaped notice.
My pal, Alan Gura, can get kinda wonky at times, which leads him to parse a law as a civ pro prawf might. And in reviewing the otherwise bad, and often unconstitutional, H.R. 1, the ominously named “For the People Act of 2021,” Alan picked up on a detail that few would have noticed until it was too late.
In one neat court-picking trick, the bill would strip 93 of 94 local federal district courts, and 11 of the 12 regional appellate courts that review their decisions, of their power to hear First Amendment challenges to Congress’s regulation of political speech. All such claims—by Alaskans, Floridians or anyone in between—would be confined to the District of Columbia. Appeals would be heard only in the D.C. Circuit—the court over which Senate Democrats exercised the “nuclear option” in 2013, ramming through three judges who shifted its ideological balance. Imagine if Republicans had passed a voting-rights bill that forced Californians wishing to challenge it to sue in Louisiana, and appeal to some of the country’s most conservative judges.
Under the existing regime, states decide how to pick their electors to send to the Electoral College, which then elects a president. This was relatively uncontroversial until Trump, which prompted cries to eliminate the Electoral College and have New York and California choose the president.
But as the Democrats sought to expand the voting base to add bodies and facilitate voting, and as the Republicans sought to prevent this from happening, each playing their own games to enhance their chance of winning, House Democrats voted their wishlist of a federal takeover of state’s prerogatives, from dictating what political speech would be acceptable to running the show out of Washington. That included making the D.C. Circuit the only venue for challenging the law.
H.R.1’s court-picking provision would shut courthouse doors throughout the country, attempt to game the outcome in critical cases, deny the Supreme Court the benefit of the federal judiciary’s broad and diverse perspectives, and repeal measures that expedite important lawsuits questioning government power.
It’s not entirely unfounded, as district courts with particular niche expertise have their purpose, and until 1962, any action against the federal government was required to be brought at its home base.
While historical quirks once made Washington the only place where Americans could sue to stop federal violations of their rights, Congress ended that restriction in 1962. The Senate Judiciary Committee called the limit “an unfair imposition upon citizens who seek no more than lawful treatment from their Government” and noted that it caused substantial delays as cases from far and wide clogged the D.C. District Court. Court-picking Washington for all federal political-speech claims is a remarkable step backward.
Proponents of H.R. 1 will likely applaud this sneaky shift in venue and rationalize why the very bad thing that Congress eliminated back when is now a very good thing because it will put the lawfare outcome in the hands of a court more inclined to rule the way they prefer. Outcome uber alles. But the fact that this was buried in a law replete with bizarre and peculiar problems that far outstrip such wonky civ pro jurisdictional concerns makes it highly unlikely that many would realize that Congress was playing the jurisdiction game. Will it win?