How Scalia Kept the Little Guys Out of Court
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 high 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 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, Scalia 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—Scalia didn’t often write majority opinions on high-profile decisions. Even his fellow conservatives feared he’d go too far on the hottest-button, 5-4 cases; the late Chief Justice William Rehnquist and the current chief, John Roberts, passed him over for assignments on major race-relations and campaign-finance cases, among many 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 restricting 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 well acquainted with academic opinion; one must 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 slash-and-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?’”
In 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 had sought to sue the credit card company collectively under antitrust law. The merchants’ only option, he said, was to pursue individual arbitration actions against AmEx, as provided for in their contracts with the company. 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 felt in those West Virginia mines and Detroit factories—and scrutinized in the halls of Harvard and Yale law schools.