Issue Brief Examines High Court’s Trend Toward “Judicial Hostility to Litigation”

In a new Issue Brief distributed by ACS, Colorado University law school professor Scott A. Moss examines the current Supreme Court and its changing view toward litigation.

Once, Moss writes, the high court viewed "litigation as an important tool for redressing grievances, deterring wrongdoing, and spurring social reform." But the justices who once joined in advancing that view are no longer on the bench, "and now the Court regularly issues rulings based on a more negative view of litigation - a view that stresses litigation's burdens on defendants rather than its importance to plaintiffs, to society, and to the vindication of policies Congress enacted."

Moss explores "the trend toward more hostility and less support for litigation is noticeable, and the Court's hostility to litigation disproportionately skews outcomes in favor of defendants, most commonly businesses sued by those claiming deprivations of various rights and protections, such as workplace anti-discrimination rights, consumer rights, wage rights, and protection against unlawful competition."

Is the trend likely to continue? Moss believes so especially if the high court, and lower federal courts, continue to include justices with very similar professional backgrounds.

The tougher stance toward litigation and the "pro-defense perspective," is better explained by the current justices' professional backgrounds. The problem, Moss maintains, "is that however varied their ideologies and philosophies, the Justices largely share a negative perception on civil litigation - a shared perspective that may reflect their largely homogenous professional background and experiences." Lower federal courts, Moss writes, also reveal a "similar homogeneity, with little change in the professional profile of the judicial nominees of the Clinton administration and the George W. Bush administration."

The Issue Brief, "Judicial Hostility to Litigation and How It Impairs Legal Accountability for Corporations and Other Defendants," is available here.