Jus­tice Scalia curbed court ac­cess for the lit­tle guy

An­tonin Scalia changed the rules on who could sue, and not in a way that helped con­sumers and em­ploy­ees

Bloomberg Businessweek (Asia) - - CONTENTS - By Paul M. Bar­rett

For all the com­mem­o­ra­tion of An­tonin Scalia’s sweep­ing le­gal the­o­ries and bit­ing prose—his pro­mo­tion of the orig­i­nal 18th cen­tury un­der­stand­ing of the Con­sti­tu­tion and his dis­dain for com­pet­ing le­gal philoso­phies—the jus­tice’s most im­me­di­ate, pow­er­ful, and last­ing in­flu­ence may be felt on one im­por­tant is­sue: who can gain ac­cess to the court­house. His opin­ions on such mat­ters as which par­ties have “stand­ing” to sue and which types of cases can be tried as class ac­tions tilted the scales of jus­tice sharply to­ward cor­po­ra­tions and away from con­sumers, en­vi­ron­men­tal­ists, and women.

Scalia’s un­ex­pected death on Feb. 13 at the age of 79 prompted well-de­served re­ca­pit­u­la­tions of his dis­tinc­tive voice on the Supreme Court’s right wing: one that railed against the ju­di­ciary’s en­gage­ment with such ide­o­log­i­cally charged is­sues as gay mar­riage, abor­tion, and cap­i­tal pun­ish­ment. In his view, those were sub­jects best left to the leg­isla­tive and ex­ec­u­tive

In de­ci­sions that fa­vored Walmart, Comcast, and AmEx, Scalia lim­ited ac­cess to class ac­tion

branches. The words he was most fa­mous for, how­ever, came mostly when he was on the los­ing side. Nev­er­the­less, dur­ing his 30 years as a jus­tice, he en­er­gized de­bate on the court and forced al­lies and foes alike to ad­dress his in­sis­tence that con­sti­tu­tional mean­ing is fun­da­men­tally rooted in his­tory and doesn’t evolve to suit the times.

Scalia’s ab­sence will be pal­pa­ble, and the po­lit­i­cal bat­tle over his re­place­ment will be fierce. But while he of­ten gave the ap­pear­ance of dom­i­nat­ing the Supreme Court—the me­dia rel­ished his op­er­atic per­for­mances at oral ar­gu­ment and his sting­ing dis­sents—he didn’t of­ten write ma­jor­ity opin­ions on high-pro­file de­ci­sions. Even his fel­low con­ser­va­tives feared he’d go too far on the hottest­but­ton, 5-4 cases; the late Chief Jus­tice Wil­liam Rehn­quist and the cur­rent chief, John Roberts, passed him over for as­sign­ments on sig­nif­i­cant race-re­la­tions and cam­paign-fi­nance cases, among oth­ers.

In rel­a­tively low-pro­file pro­ce­dural cases, how­ever, Scalia did get op­por­tu­ni­ties to lead ma­jori­ties. Con­ser­va­tives her­ald his ef­forts in this re­gard. “He did more to clar­ify and limit the bounds and scope of ju­di­cial power than any Supreme Court jus­tice in his­tory, par­tic­u­larly in the area of stand­ing and class ac­tions,” says David Rivkin, a part­ner with the Wash­ing­ton of­fice of the law firm Baker Hostetler and a for­mer le­gal of­fi­cial in the Rea­gan and elder Bush ad­min­is­tra­tions. “Fed­eral courts’ case­books will be stuffed with his de­ci­sions on those top­ics for decades to come.” (Trans­lat­ing into lib­eral ar­got: Scalia changed the rules for who could sue—and not in a way that helped the lit­tle guy.)

Scalia an­nounced his goals on lim­it­ing court ac­cess while still serv­ing as a fed­eral ap­pel­late judge in Wash­ing­ton. In a 1983 law re­view ar­ti­cle ti­tled “The Doc­trine of Stand­ing as an Essen­tial El­e­ment of the Sep­a­ra­tion of Pow­ers,” he wrote that courts had mis­ap­pro­pri­ated au­thor­ity from other branches of gov­ern­ment by al­low­ing too many peo­ple to sue cor­po­ra­tions and gov­ern­ment agen­cies, es­pe­cially in en­vi­ron­men­tal cases. With rhetor­i­cal verve, if not uni­ver­sal per­sua­sive­ness, Scalia wrote that lib­eral at­ti­tudes to­ward who had stand­ing to lit­i­gate “met with ap­proval in the class­rooms of Cam­bridge and New Haven but not in the fac­to­ries of De­troit and the mines of West Vir­ginia.” (A for­mer law pro­fes­sor, Scalia was wellac­quainted with aca­demic opin­ion; one might ques­tion, though, his fa­mil­iar­ity with views in blue-col­lar Amer­ica.)

Once he was ap­pointed to the Supreme Court by Pres­i­dent Ron­ald Rea­gan in 1986, he set about chang­ing the law of court ac­cess. Scalia wrote ma­jor­ity high court opin­ions that cut back on so­cial re­form law­suits by re­quir­ing that plain­tiffs make a more ro­bust show­ing of how they were di­rectly harmed by, for ex­am­ple, a vi­o­la­tion of an­tipol­lu­tion statutes. In a dis­sent, the late Jus­tice Harry Black­mun de­scribed a 1992 Scalia opin­ion in an oft-cited case lim­it­ing suits un­der the En­dan­gered Species Act as “a slas­hand-burn ex­pe­di­tion through the law of en­vi­ron­men­tal stand­ing.”

In 1999, John Bo­nine, a for­mer En­vi­ron­men­tal Pro­tec­tion Agency of­fi­cial and then a law pro­fes­sor at the Univer­sity of Ore­gon, pub­lished an aca­demic ar­ti­cle ar­gu­ing that in Scalia’s hands, the linked doc­trines of sep­a­ra­tion of pow­ers and stand­ing “have be­come not merely a sword but a scythe to be swept through the wheat fields of ju­rispru­dence.” Lower courts, Bo­nine ob­served, were ex­pand­ing on Scalia’s opin­ions to cut off nu­mer­ous suits be­fore they got close to a jury.

Hav­ing seen his views on stand­ing largely af­firmed, Scalia turned his at­ten­tion in more re­cent years to class ac­tions, where groups of hun­dreds or even thou­sands of plain­tiffs sue col­lec­tively to rem­edy al­leged harms. In a land­mark 5-4 rul­ing in 2011, he wrote the ma­jor­ity opin­ion that shielded Walmart Stores from a class of more than 1.5 mil­lion fe­male em­ploy­ees claim­ing sex dis­crim­i­na­tion. The plain­tiffs “wish to sue about lit­er­ally mil­lions of em­ploy­ment de­ci­sions at once,” he wrote. “With­out some glue hold­ing the al­leged rea­sons for all those de­ci­sions to­gether, it will be im­pos­si­ble to say that ex­am­i­na­tion of all the class mem­bers’ claims for re­lief will pro­duce a com­mon an­swer to the cru­cial ques­tion of, ‘Why was I dis­fa­vored?’ ”

I n dis­sent, Jus­tice Ruth Bader Gins­burg saw plenty of glue. “Gender bias suf­fused Walmart’s com­pany cul­ture,” she wrote. The Scalia opin­ion “dis­qual­i­fies the class at the start­ing gate.”

Two years later, in a 5-4 rul­ing that pro­tected Comcast against a mo­nop­o­liza­tion suit brought on be­half of 2 mil­lion ca­ble sub­scribers, Scalia re­in­forced and ex­panded the beach­head he’d cre­ated with the Walmart rul­ing. “The class ac­tion,” he wrote, “is an ex­cep­tion to the usual rule that lit­i­ga­tion is con­ducted by and on be­half of the in­di­vid­ual name par­ties only.” The rub, of course, is that the dam­ages suf­fered by in­di­vid­ual em­ploy­ees or pa­trons of gi­gan­tic com­pa­nies may not be sub­stan­tial enough to at­tract the at­ten­tion of plain­tiffs’ at­tor­neys, mak­ing mass lit­i­ga­tion the only fea­si­ble way to hold cor­po­ra­tions ac­count­able via the courts.

Scalia re­jected that ar­gu­ment in an­other 2013 opin­ion fa­vor­ing Amer­i­can Ex­press against small mer­chant plain­tiffs that sought to sue the credit card com­pany col­lec­tively un­der an­titrust law. The mer­chants’ only op­tion, he said, was to pur­sue in­di­vid­ual ar­bi­tra­tion, as pro­vided for in their con­tracts with AmEx. Jus­tice Elena Ka­gan dis­sented: “To a ham­mer, ev­ery­thing looks like a nail,” she wrote. “And to a Court bent on dis­man­tling the use­ful­ness of Rule 23 [the fed­eral pro­vi­sion al­low­ing for class ac­tions], ev­ery­thing looks like a class ac­tion, ready to be dis­man­tled.”

Many es­timable lawyers and schol­ars—not to men­tion cor­po­rate ex­ec­u­tives—ap­pre­ci­ate Scalia’s guard­ing the court­house doors. Richard Bern­stein, a for­mer Scalia law clerk who’s now a part­ner in the Wash­ing­ton of­fice of Wil­lkie Farr & Gal­lagher, de­scribes his ex-boss as merely “be­ing faith­ful to the tex­tual re­quire­ments in Rule 23.” Those re­quire­ments in­clude that plain­tiffs in a class ac­tion raise com­mon claims that pre­dom­i­nate over in­di­vid­ual cir­cum­stances and that over­all a class ap­proach is more ef­fi­cient at re­dress­ing a wide­spread com­plaint than one-off law­suits.

But oth­ers see in Scalia’s ar­gu­ments an agenda of which they dis­ap­prove. Re­fer­ring not only to the jus­tice him­self, but more broadly to the con­ser­va­tive wing of the court Scalia led on th­ese is­sues, Arthur Miller, a pro­fes­sor at New York Univer­sity School of Law, pub­lished a pa­per in 2013 called “Re­flec­tions on the De­for­ma­tion of Fed­eral Pro­ce­dure.” In it, Miller de­cried the con­ser­va­tives’ hav­ing “placed a thumb on the jus­tice scale fa­vor­ing cor­po­rate and gov­ern­ment de­fen­dants. Th­ese man­i­fes­ta­tions have im­paired both ac­cess to the fed­eral courts for many cit­i­zens and the en­force­ment of var­i­ous na­tional poli­cies.”

Jus­tice Scalia, no doubt, would dis­agree and say his mis­sion was neu­tral and mod­est: to en­force the laws as writ­ten. Ei­ther way, the im­pact of his de­ci­sions will long be scru­ti­nized in the halls of Har­vard and Yale law schools— and felt in those West Vir­ginia mines and De­troit fac­to­ries. <BW>

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.