Balkinization: No Day in Court: Big Business’s Attack on Access to Courts

No Day in Court: Big Business’s Attack on Access to Courts

David Gans

As the Supreme Court begins a new Term, big business is continuing its efforts to close the courthouse doors to individual Americans, making it harder for consumers and others to vindicate their federal rights and hold corporate America accountable. Represented by some of the nation’s premier Supreme Court litigators and backed by the Chamber of Commerce and a wealth of corporate and conservative interest groups, the business community—which has achieved unparalleled success before the Roberts Court—is making bold, far-reaching arguments designed to prevent hard-working Americans from going to court to remedy corporate wrongdoing. Under attack in a number of important cases this Term is the right of individuals to go to court to vindicate their federal legal rights.

The big cases about Article III on the docket this Term—Spokeo, Inc. v. Robins and Campbell Ewald Co. v. Gomez—by and large, have flown under the radar. As the Term opens, there’s been a lot of attention given to hot button cases concerning race, voting, and unions, as well as major reproductive rights cases likely to be added to the Supreme Court’s docket later this fall. But this Term’s access-to-court cases, which will be heard in October and November, have gone largely unnoticed, described, if at all, as part of a concerted effort to curb class actions. But there is far more to this Term’s key business cases than that. These cases pose a crucial test for the Roberts Court: will the Justices properly interpret the Constitution to give individuals the right to go to court to obtain a legal remedy when corporations violate their federal legal rights?

When the Framers gathered together in Philadelphia to write a new national charter more than two centuries ago, the promise of access to the federal courts was at the heart of a new system of government accountable to the people. Article III of the Constitution created the federal judiciary as a co-equal branch of government vested with the power to expound and enforce the laws, ensuring that the federal courts would have the power to enforce legal rights. The Framers understood that legal rights were meaningless without the right to go to court to obtain a remedy when those rights are violated. Resort to the “courts of justice,” the Framers insisted, “is the only natural and effectual method of enforcing laws.” Access to courts was the building block of the rule of law, key to the promise that ours would be a government of law, not men.

In the early days of our nation, Chief Justice John Marshall—one of the greatest Chief Justices in American history—penned landmark rulings affirming the Constitution’s promise of access to courts, holding that the Constitution authorized the “judicial department” to “decide all cases of every description under the constitution or laws of the United States,” and imposed on the federal courts the obligation “of deciding every judicial question that grows out of the constitution and laws.” However, over the last forty years, conservative Justices on the Supreme Court have turned their back on these fundamental principles, insisting that the right to sue in court must be strictly limited. As Justice Samuel Alito made the point, “[r]elaxation of standing is directly related to the expansion of judicial power.” This Term, big business is seeking to capitalize on the restrictive view of the role of the courts held by Chief Justice John Roberts and his conservative colleagues, urging the Justices to issue a host of court-closing rulings.

The biggest of these cases, the Spokeo case, raises huge questions about the power of Congress to create legal rights and provide for their enforcement in court. The Fair Credit Reporting Act, passed in the 1970s to limit the power of corporations to disseminate false credit information about an individual, explicitly gives the victim of a misrepresentation the right to use. But Spokeo, a credit reporting agency sued for disseminating inaccurate information about Thomas Robins, insists that giving the right to sue to individuals to enforce the Act violates the Constitution. Incredibly, Spokeo makes the argument that the dissemination of false information about an individual does not result in injury. According to Spokeo, Thomas Robins’s suit for damages to redress the company’s false dissemination of information about him is not a “case” within the meaning of the Constitution. Dozens of corporations and conservative legal activists—including the U.S. Chamber of Commerce, Ebay, the American Bankers Association, and media corporations such as Time, Inc.—have stepped forward to support Spokeo, claiming that Congress cannot provide a right to sue simply to enforce a violation of federal legal rights. However, these arguments cannot be squared with the role of the courts in our constitutional system, which is to vindicate individual rights and maintain the rule of law.

Campbell-Ewald, a second major case concerning Article III’s case or controversy limitation to be heard this Term, raises the question whether the Constitution gives defendants the power to defeat class actions. Campbell-Ewald—backed by the Chamber of Commerce and others—insists that, under Article III of the Constitution, a plaintiff’s class action lawsuit must be dismissed whenever a defendant makes an offer of judgment of full relief to the named plaintiff, even if the plaintiff has rejected that offer and wants to litigate the case as a class action to obtain relief for the class and a public judicial declaration that the corporation violated the law. Such a ruling would essentially give a corporation a potent weapon to defeat any class action lawsuit, undermining the Constitution’s goal of ensuring court access to enable individuals to vindicate their legal rights. This would be particularly harmful when the damages caused by corporate wrongdoing are relatively small on an individual level but in the aggregate provide a windfall to the corporation.

Corporations have had an incredible run of success in the Roberts Court. In the first ten Terms of the Roberts Court, the Chief Justice and his conservative colleagues have repeatedly delivered big wins to the business community, moving the law to the right and favoring the interests of big business over ordinary Americans. This Term, the business community is hoping to establish new limits on the right to sue, keeping consumers and others out of court entirely. The question now is whether the conservative wing of the Roberts Court will respect our Constitution’s guarantee of access to courts or subvert it, leaving Americans without legal recourse when corporations violate federal rights.

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's briefs in Spokeo and Campell-Ewald. This post is cross-posted at Text and History.

Posted 12:20 PM by David Gans [link]