WASHINGTON — It may be one of the smallest federal court circuits in the country, but in the early days of the Trump administration, New England is emerging as a top battleground to sue the Trump administration.
It’s a change from President Trump’s first term in office, when lawsuits against his policies were heavily clustered on the West Coast. But experts say it’s no coincidence, as the appellate region that makes up the First Circuit has become one of the most advantageous places for those challenging Trump policies to file their litigation, for a variety of reasons including its all-Democratic appointee makeup at the appellate level.
“If you’re a progressive ... it would be malpractice to not go to the First Circuit,” said John Yoo, a professor at the University of California Berkeley who served in the George W. Bush administration.
Of the 80 cases so far, a majority have been filed in the District of Columbia, according to Just Security’s litigation tracker.
The First Circuit is the next most active region in the nation — a notable uptick for the circuit with the fewest judges and one of the smallest geographic and population footprints. Eleven cases have been filed in the courts in Maine, Massachusetts, New Hampshire, and Rhode Island that with Puerto Rico make up the First Circuit. Judges in Massachusetts, Rhode Island, and New Hampshire have already issued major decisions blocking Trump actions, including cuts to scientific funding, ending birthright citizenship, and freezing federal funding.
Picking advantageous courts, or forum shopping, as it’s called in legal circles, is a longstanding practice regardless of ideology. The rise of the New England courts as the preferred venue during the first weeks of the second Trump administration has to do with the judges that Trump and former president Joe Biden were able to get confirmed over the intervening eight years, experts said, as well as the complex decision-making that lawyers weigh in selecting a place to file a case.
“The only thing that’s novel about what is happening in the First Circuit is that it’s the First Circuit,” said Georgetown Law professor and legal writer Stephen Vladeck. “I don’t think there’s been a point, certainly in recent history, that folks thinking about where to steer nationwide litigation against any federal government would have focused so heavily on those four New England states.”
Lawsuit filings are not random. The case must have a connection to the local area, either through the individual or entity suing, or who is being sued. In federal court, cases are first brought to a district-level court. Those district courts fall under the purview of one of the circuit courts, whose judges hear appeals of decisions at the district level.
But lawyers and legal advocates are strategic about where they bring cases — evaluating their options for where to sue based on possible plaintiffs who can make a convincing case and where the legal challenge might be most likely to succeed at the district and appellate level. The appellate level is important because once rulings like injunctions blocking federal policies are upheld by an appeals court, it’s likely to stay in place for some time before possible intervention by the Supreme Court.
The First Circuit makes an attractive option for lawyers in part because all five of its active appeals judges were appointed by Democrats, four of the five by Biden, according to an analysis by ABC News. It has no Trump appointees and is the only circuit in the country without judges named by both Democrats and Republicans. While Trump didn’t flip the Ninth Circuit to a conservative court in his first administration, he made it much more ideologically balanced. There is one vacancy on the First Circuit that Senate Democrats ran out of time to fill last year, however, leaving Trump an opportunity to name his own.
At the district level, home state senators retain the right to sign off on judicial nominees, and all but one of the states’ eight senators are Democrats or align with Democrats.
But the advantages in the First Circuit are more complex than just the political makeup of the court, experts say. Lawyers looking to give their cases the best chance of success weigh not just who appointed the judges, but what precedents on similar topics have been set in that circuit in the past.
“Any lawyer worth their salt needs to make strategic and good judgments about where they’re going to file litigation,” said Cecillia Wang, national legal director of the American Civil Liberties Union, one of the biggest organizations that fights court battles for constitutional rights. Wang noted the calculus changes by the topic of the case and which regions might have the best past track record on it.
But no case can be filed in a district court without a local connection, meaning the ACLU and similar organizations have to represent people in the state where they file who have been personally harmed by policies to challenge those policies in court. Massachusetts has a high concentration of people who might be affected by Trump policies and of local advocacy and legal groups that work with them, especially in areas like health care, immigration, and LGBTQ+ rights, giving the region a large pool of potential cases.
It’s a similar but slightly different calculus for state attorneys general, another major source of lawsuits against federal policy, said James Tierney, a former attorney general of Maine and lecturer at Harvard Law School who runs its attorney general clinic.
Democratic state attorneys general have been preparing for months to challenge possible Trump policies and have already filed several multistate lawsuits, including some in New England. When those top lawyers for states team up, Tierney said, they strategize based on whose offices have the right specialists on a topic, whose caseload might have enough bandwidth, whose state has a strong tie to the issue, and, yes, what circuits make sense. That’s why, for example, Massachusetts took the lead on the lawsuit challenging National Institutes of Health funding caps, as the state has a significant health and science sector.
He noted that the First Circuit’s small size not only means having a strong probability of what judge gets the case but also tends to make for quicker timelines on cases.
“The states are being highly strategic on where they sue,” Tierney said.
But Wang and Tierney said there’s another important factor besides winning the case up to the appellate level and hoping the conservative Supreme Court doesn’t overturn it: Gaining public attention. Once a judge gets to hearing a case, they said, the court can order federal officials to testify under oath and produce records about what is happening for the public to see.
“The real power of the litigation was the storytelling,” Tierney said. First Circuit judges “are not going to do a favor for anybody, not for the president or for the plaintiffs. ... If you get a judge like [Judge John] McConnell in Rhode Island, they’re going to say, ‘I want to hear the story, I want the Department of Justice in my courtroom.’”
Tal Kopan can be reached at tal.kopan@globe.com. Follow her @talkopan.