Now that the Senate will begin confirmation hearings of deeply conservative D.C. Circuit Court judge Brett Kavanaugh to the U.S. Supreme Court, some liberals have turned to Justice John Roberts as the possible new centrist or “swing vote” on the court. Although Roberts is generally a reliably conservative voice, commentators point to a gentle leftward drift and a few key votes as examples of his moderation, such as his majority opinion upholding Obamacare.
Justice Roberts, the argument goes, might have genuine conservative priors. But he is also deeply committed to protecting the institution of the Supreme Court itself and insulating it from the charge that it has just become a third political branch of the federal government. For anyone worried about the future of abortion access, LGBT rights, affirmative action, or pushback against the executive excesses of the Trump presidency, this isn’t a bad strategy. Roberts seems, at worst, committed to a strategy of incremental change rather than abrupt action, like a vote to completely overturn Roe v. Wade. The more hopeful among us offer soothing reassurances that Roberts’ long-term interest in the institution of the Supreme Court will be a powerful moderating influence, both in the votes he casts and in the opinions he writes.
Even if this were true, the “institutional integrity” line of thinking only works if we assume that the most important issues appear in the highest profile cases. A few key votes on hot-button cases might give the Roberts court cover to move further rightward on lesser-known issues, or cases involving technical and complex issues that are not easily reduced to twitter-friendly soundbites. We can expect the pro-business bent of the court to continue to move further and further right. And in one key subset of cases, the Roberts court can, with minimal attention and outcry from the general public, push the court further right with serious consequences for decades to come.
These cases come from the rather dull-sounding area of law called civil procedure. Although these issues may seem boring (and I would know—I’ve made a career out of livening up these seemingly tedious issues for my first-year law students), a series of carefully picked and well-timed decisions could allow the court to significantly narrow Americans’ access to justice without ever confronting the politically charged issues that dominate the news cycle. The court has already narrowed consumers’ and employees’ rights to bring collective actions in arbitration, to file efficient class actions in a single court for defective products, or to sue foreign manufacturers for dangerous products without traveling to a distant American or even foreign forum. More ominously, the court has been steadily curtailing plaintiffs’ abilities to sue government officials for constitutional violations.
The Supreme Court exercises discretionary control over its docket, and it can easily pick procedural cases that seem distant from the everyday lives and concerns of most Americans; perhaps a dispute about where one can sue a railway, or the question of whether a construction company can force a court to transfer a case from one state to another. But don’t be fooled by the hum-drum dispute and the dry complexities of the procedural law at issue. These cases form the backbone of our ability to vindicate important public and private rights in court, and a conservative court could bury a sharp rightward turn in the procedural weeds.
Turning to the Rule Makers
There is good news here, though. If you care about access to justice, it’s time to start raising the profile of potential Supreme Court cases that would make it harder for Americans to vindicate their rights in court. Let Justice Roberts know that the integrity of the Court depends as much on access to justice as it does on maintaining political balance. Better yet, most of the doors to our court system are open and shut by Congress and rule makers, not by the Constitution. We need to stop relying on courts to save our access to justice, and turn instead to Congress, procedural rule makers, and other legislative bodies to pass legislation that keeps Americans’ abilities to vindicate our rights in state and federal court from disappearing into a morass of “mere technicalities.”
Robin Effron is professor of law and co-director of the Dennis J. Block Center for the Study of International Business Law at Brooklyn Law School. She also edits the Civil Procedure and Federal Courts Blog for the Law Professors Blog Network.