Right-wing agitprop has screamed bloody murder ever since Judge Paul Engelmayer issued a temporary restraining order ordering Elon Musk’s merry band of morons to refrain from playing around with Treasury Department data, specifically sensitive personally identifiable information, for SIX DAYS to allow the parties to fully brief the matter. Musk keeps insisting DOGE is just an innocent audit to expose corruption. A lot of people are parroting this claim because Dunning-Kruger is real and it’s spectacular.
Though if DOGE were conducting a good faith audit… why would this order be controversial? Audits don’t collapse if they wait another week into a four-year term. And yet Musk and his cronies responded to the order with the same trademark anxiety as a coke dealer hovering over a toilet with an industrial-grade plunger while cops bang on the door.
Curious!
After spending a couple days complaining that judicial oversight cannot apply to the executive branch — and leaning into Carl Schmitt’s literal Nazi ideology for good measure — Musk took a break from watching someone else make his Diablo IV character famous and stumbled upon a new theory to blast the TRO: judge shopping.
You know… the thing Musk shamelessly does all the time.
As an aside, all this ire — now the prospect of impeachment! — against Judge Engelmayer is extra bizarre since he’s not the judge who will hear the case. He just delayed even the risk of further damage to the data until Judge Jeannette Vargas hears the parties. It’s almost as though they’re hoping to whip up enough baseless rage that it might intimidate Judge Vargas.
Shopping around the country?
The Southern District of New York is the most important court in the country (don’t @ me, DC). It has 40 active and senior judges in the Manhattan courthouse including multiple Republican nominees, including four by Trump. As for the idea that the plaintiffs shopped for Engelmayer specifically, they had a 2.5 percent chance of drawing him for the TRO.
If Musk’s adversaries decided to “shop around the country for an activist judge to do their bidding,” they did a particularly horrible job choosing the SDNY. But the right-wing echo chamber is acting as though Wall Street’s courthouse is an Antifa book club.
Musk’s latest salvo depends on exploiting an audience unfamiliar with the difference between forum shopping and judge shopping. When plaintiffs have a basis to bring a case in one of many districts, they’ll often “forum shop” and bring the claim where they can benefit the most. Generally this takes the form of finding a court on the favorable side of a split between circuits or one where the pool of randomly assigned judges works in the plaintiffs’ favor. Like, for example, bringing a case about Treasury data in the district that hears all the country’s core financial cases and the judges spent their pre-judicial careers representing big financial institutions.
But it’s still a random assignment, meaning the litigants are more interested in the skills and experience of the pool as a whole because there’s little to no chance of drawing any one judge.
This is distinct from “judge shopping,” where a litigant brings a claim in a district where the local rules allow the case to be heard by only one judge. Essentially converting “random” to “guarantee.” This has given rise to a number of flagrant abuses.
It might SEEM to a non-lawyer audience like this is a situation where “both sides do it,” but as it turns out it’s almost exclusively a conservative racket. Single-judge courthouses — as one might suspect — exist in geographically huge districts with rural areas a long way away from large cities. Those districts mostly exist in bright red states where home state senators spent decades reserving seats to establish a right-wing dominated federal bench. As Republicans drew more judges from the ranks of far-right activist groups, conservatives took the opportunity to exercise (and sometimes even concoct) jurisdiction in these rural courthouses to take advantage of specific judges. The damage to court credibility was so palpable that the Judicial Conference sought to put the brakes on this to preserve the sanctity of the courts. But the proposed rule died on the vine after MAGA activists lost their minds over it, arguing that judge shopping almost amounts to a fundamental human right and that criticizing the practice causes death threats. But, magically, they don’t seem all that concerned now.
By contrast, Musk absolutely loves judge shopping.
After advertisers began to flee Musk’s new racial slur-friendly Twitter format, he told them to “go fuck yourself.” When that shockingly failed to charm them back into the fold, he accepted the consequences of the free market like a self-respecting capitalist. Just kidding, he sued them. Arguing that private advertisers choosing to not give him their money was basically a RICO-monopoly may seem like a patently absurd claim but that’s only because it is. So he sought out a judge who appreciates patently absurd claims, shoehorning an obscure Danish renewable energy company into the suit alongside big box advertisers in order to square-peg-round-hole a justification to drop the claim in front of Judge Reed O’Connor.
After it came out (in another matter) that O’Connor owned a bunch of Tesla stock, he recused himself on that case but decided the financial stake in Musk’s business did not preclude him from overseeing X’s claims against Media Matters. The watchdog group tested X executives’ claims that it would be impossible for companies to find their ads served next to white nationalist rants and discovered it was… whatever the exact opposite of impossible is. Apparently his financial stake was too much to rule against CVS but just enough to rule against Media Matters! His opinion attempting to justify not recusing himself was comically shoddy, leaning on a tissue-paper thin corporate veil between X and the Elon Musk Personal Brand Meme Stock known as Tesla.
But Musk’s misadventures with O’Connor don’t stop there! Musk went to the trouble of rewriting the X terms of service to place any dispute against the social media company in front of O’Connor.
When Musk brings the matter, guaranteeing himself a single judge in an out-of-the-way courthouse is fine. When Musk is on the other side, bringing a case in MANHATTAN with a 2 percent chance of catching any particular judge… OUTRAGE! CORRUPTION! DEEP STATE! DOGS AND CATS LIVING TOGETHER!
Musk’s argument about judge shopping is somehow both wrong and projection. No one expects Musk or his followers to embrace actual reforms to stop judge shopping. The entire right-wing legal movement is built on using small, rural courthouses to secure high-impact nationwide injunctions. But the fact that Musk is trying to use this argument at all means he knows how bad it looks when people actually understand it.
Unfortunately, people don’t understand it and most of the media seems just fine letting Musk feed them this horseshit by the shovel.
Earlier: Judge Told Trump And Musk To Follow The Law For A Week. They’re Calling It Tyranny.
Elon Musk Changes X Terms To Push All Disputes Toward Tesla-Investor Federal Judge
Unhinged Federal Judge Thinks Criticizing Judge Shopping Causes Death Threats
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.