Just days after President-elect Donald Trump won the election, blue state attorneys general said they are already strategizing on how to fight the incoming administration’s policies—including where to file their lawsuits.

California Attorney General Rob Bonta told Politico last week that his lawyers already "have gone down to the detail of what court do we file in." And other Democratic attorneys general, including in New York, Massachusetts and Maryland, issued similar statements about plans to oppose Trump policies in court.

Shifting Ninth Circuit

But will the U.S. Court of Appeals for the Ninth Circuit—widely considered the country’s most liberal federal appeals court and one Trump has directly criticized—return to being at the center of legal battles over Trump's policies, as was the case in his first term? Or, might lawyers look elsewhere?

Court watchers say they still expect the Ninth Circuit to be the site of plenty of legal action, but more fights could play out elsewhere this time around, especially given how Trump’s conservative appointees chipped away at the circuit’s liberal majority. Trump added 10 judges to the Ninth Circuit, with 13 of the court’s 29 active judges now appointed by Republican presidents and 16 by Democrats.

On top of that, the court has a “limited en banc” process that’s different from other courts. Instead of all active judges hearing en banc cases, the Ninth Circuit picks 10 active judges randomly plus the court’s chief judge to hear appeals en banc.

“[Trump] brought the [number of Republican appointees] up to 13, which is higher than it had been in a long time,” said University of Pittsburgh law professor Arthur Hellman, who studies the Ninth Circuit.

“Even though there is a majority of Democratic appointees, you can get an en banc court with a majority of Republican appointees," Hellman added. "And for that reason, it may be that groups challenging Trump administration policies will look for other circuits where they ... know what the en banc court will be.”

Where Else?

The concept of “forum shopping” isn’t new. Democratic-led states and progressive groups have turned to the Ninth Circuit in past administrations hoping for favorable rulings, while Republicans have gone to the more conservative Fifth Circuit to challenge President Joe Biden’s policies.

However, the judiciary has recently sought to combat more specific “judge shopping,” where lawsuits are filed in single-judge divisions to guarantee a particular judge hears the case. Republican-led states often chose the single-judge Amarillo division in the Northern District of Texas to challenge Biden’s policies, where Trump-appointee Judge Matthew Kacsmaryk sits.

Lawyers challenging Trump’s second-term policies might eye the First Circuit, in addition to the Ninth, Hellman said.

Five of the court’s six active judges were named by Democratic presidents: four by Biden and one by Obama. Biden has tapped Maine Superior Court Judge Julia Lipez to fill one still-vacant seat, but she is awaiting a floor vote by the Senate in the lame-duck session, which ends in mid-December.

If confirmed, every active judge would be a Democratic appointee. The court’s only active Republican-appointee Judge Jeffrey Howard took senior status in 2022.

Aileen McGrath, a partner in Morrison Foerster's appellate and Supreme Court practice, said that whether there’s unique circuit or district case law relevant to a particular case will also matter in deciding venue.

“[This] probably again points in favor of seeing cases in the 9th, where that court and the district courts heard similar challenges years ago and largely ruled in favor of plaintiffs,” McGrath stated via email.

While expecting many cases to be filed in the Ninth Circuit, McGrath agreed the First Circuit could be a new front.

She added that district court assignment will also factor into venue strategizing.

The U.S. District Court for the Northern District of California will likely continue to be a preferred venue for those challenging Trump’s policies, given that 23 of the court’s 25 judges were appointed by Democratic presidents. In Trump's first term, judges in the district shot down his immigration policies, including his asylum bans and “Remain in Mexico” policy.

“Winning before the district court will continue to be an important focus of these plaintiffs, and the odds of a victory before the Northern District of California may outweigh any slight shift in odds at the Ninth Circuit compared to eight years ago,” McGrath said.

Jeremy Fogel, executive director of the Berkeley Judicial Institute, said the trial courts are a key consideration due to their factfinding function.

“A reviewing court is limited by the record that was made in the district court in terms of factual issues," said Fogel, a former judge in the Northern District of California. "And so I think part of the analysis of ‘where do you file?’ has to do with your sense of the reception you're going to get in the district court.”

Other likely venues Hellman pointed to are the Fourth Circuit and D.C. Circuit, where challenges to agency actions are often lodged.

The Fourth Circuit has a 9-6 majority of active Democratic appointees, and 13 of 19 of its sitting judges were picked by Democratic presidents. Biden didn’t shift the balance of the court but further cemented that majority with three appointments, Hellman said.

A fourth Biden pick, North Carolina Solicitor General Ryan Park, is awaiting Senate confirmation.

The full circuit—which covers Maryland, the Carolinas, Virginia and West Virginia—allowed a lawsuit by Maryland and the District of Columbia attorneys general to proceed that accused Trump of violating the Constitution’s emoluments clause. The en banc court revived the case after a three-judge panel composed of judges appointed by Republican presidents had dismissed it.

The Fourth Circuit, like the Ninth, also ruled against Trump’s ban on visitors from Muslim-majority countries.

“The Fourth Circuit has a solid majority of Democratic appointees. And furthermore, that court has shown itself quite willing to use the en banc power to overturn rulings by conservative [panel] majorities and use the en banc power, I would say, aggressively,” Hellman said. He also cited an August 10-5 en banc decision in which the court upheld a Maryland assault weapons ban.