Bonus 104: A Tiny Battle in the Venue Wars

Three new cases give the justices a chance to weigh in on efforts to steer certain environmental cases into or away from specific circuits. They don't—and won't—get at broader forum-shopping debates.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I was motivated to write today’s bonus post by three of the four cases the Supreme Court added to its docket on Monday (two of which are consolidated), which each ask the justices to resolve whether particular challenges to actions of the Environmental Protection Agency had to be heard in the D.C. Circuit or in the “regional” courts of appeals (including, in these cases, the Fifth and Tenth Circuits). If you saw only the headlines, you might think that the Supreme Court was finally poised to weigh in on the efforts by litigants to take increasing advantage of federal venue rules to steer as many cases as possible to the most ideologically sympathetic judges that they can find—even when the suit seeks nationwide relief and has no specific connection to the chosen forum.

It turns out, though, that the EPA cases turn on the correct interpretation(s) of an EPA-specific statute—in a context that will have little bearing on the broader debates over judge-shopping, single-judge divisions, and nationwide relief. That will not only prevent the justices from addressing behavior that has resulted in more than 23% of their own docket so far this term coming from a single lower court (I could give you two guesses as to which one, but you’d just need one); it might also leave those not paying closer attention with the misperception that the public debate over that behavior is making a mountain out of the wrong molehill.

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