SCOTUSBlog is hosting an online symposium inviting guest authors to explore the impact that a conservative or liberal nominee replacing the late Justice Antonin Scalia might have on certain areas of law. These posts, including SCOTUSBlog author Amy Howe’s introduction to the symposium, are available at this link.
In a post titled “The Court after Scalia: Uncertain first principles for class actions,” Allyson Ho and Scott Schutte, partners at Morgan, Lewis & Bockius LLP, weigh in on the effect a new conservative Justice might have on the Court’s class-action jurisprudence. The short answer is “not much.” According to the authors, the Roberts Court has adopted a moderate-conservative approach on class actions, garnering a narrow – if reliable – majority. A “conservative” replacement of Justice Antonin Scalia would almost certainly preserve that majority. To quote the authors:
The Court’s consensus on class actions is both broad and fragile. It commands a bare majority of the Court – with the dissenting Justices sharing none of its primary assumptions. The dissenters tended to view the class action as a right unto itself; to value the weight of foregone claims over the costs attendant to meritless class actions; and to believe the class action deserving of some indulgence from doctrines applied to bilateral litigation. A new conservative Justice would likely apply the principles embraced by the majority, perhaps extending them incrementally.
But a new liberal Justice would almost surely upset the underlying assumptions of the Roberts Court’s treatment of class actions, and in turn revisit the doctrinal developments of the last decade or so – almost certainly imposing the dissenters’ view. We could expect this alternate approach to permit larger, more loosely defined classes and lead to more judicially created exceptions when necessary to preserve class actions.
Scott Michelman, previously an attorney with Public Citizen Litigation Group and current senior staff attorney at the American Civil Liberties Union in D.C., penned “The Court after Scalia: Leaving the class-action revolution hanging.” Mr. Michelman argues that a left-of-center replacement for Justice Scalia would likely end any reasonable chance that the Court would impose additional restrictions on class action plaintiffs. He wrote:
Although not all hot-button legal issues divide predictably along ideological lines — the Fourth Amendment and federal sentencing law, for example, are two areas in which voting patterns on the Roberts Court have defied easy ideological classification — moderate-to-liberal jurists of both the Supreme Court and the federal courts of appeals have voted fairly consistently against erecting new obstacles to class-action certification in recent years…. As a result, workers and consumers seeking to hold corporations accountable by invoking Rule 23 to sue on behalf of others will stand on firmer legal ground, and the corporate defense bar’s hopes for a revolution in class action law will remain unfulfilled.
Alan Gura, another Cockle regular, is an attorney at Gura PLLC and adjunct professor at Georgetown University Law Center. In a post titled: “The Court after Scalia: The next ‘conservative’ Justice may not save the Second Amendment,” Gura urges that appointing a single conservative Justice to replace Antonin Scalia won’t improve matters. “Indeed, ‘conservative’ judges are part of the problem.” As a staunch advocate of Second Amendment protection and counsel for the plaintiffs in District of Columbia v. Heller and McDonald v. City of Chicago, Gura addresses the effect of a conservative nominee:
Another deferential judicial minimalist unenthusiastic about civil rights claims won’t improve matters. At least two more Justices who can overcome any personal political discomfort, and acknowledge both the Second Amendment and their role in enforcing fundamental rights, are required to guarantee the bare minimum of a recognizable right to arms. Unfortunately, given the major party nominees this election, the prospect of seeing even one such Justice confirmed in the next four years could not be closer to zero.
As of this writing, there have been 185 days of Senate inaction since President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Stay tuned to our blog for future developments.