By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center
In what now sometimes seem like the good old days, when five conservative Justices closed the courthouse doors on plaintiffs seeking to enforce progressive statutes, Justice Stevens could be counted on to protest loudly. None of the present members of the Court have taken on his role of objecting to the conservative assault on court access to enforce civil rights, consumer protection, and safety net statutes. Their relative silence on the issue of court access is worrisome.
Ever since the conservatives garnered a five vote majority in the early 1990s, the conservative Justices have systematically eroded the ability of private individuals to enforce progressive federal and state laws. While the four liberals were powerless to stop it, at least Stevens’ dissents understood the destructive force of the denial of court access. The liberals presently on the Court are not following his lead. Their opinions are missing the big picture of the importance of preserving the private enforceability of progressive federal laws.
On Monday in Janus Capital Group, Inc. v. First Derivative Traders, by a vote of 5 to 4, the Court threw out a suit to hold a corporation accountable for lies to stockholders, on the grounds that the corporation only advised and did not have complete control over the corporate entity that published the lies. Justice Thomas, writing the majority opinion, made no bones about seeking to get rid of citizen suits. He explicitly stated that because the securities statute had an implied, rather than an express, right of action, the Court would give the right to sue “narrow dimensions.” He instructed courts to exercise “caution” against the “expansion” of court access. In addition, he disparaged the federal government for standing up for investors. He ridiculed the government agency, saying the SEC’s “presumed expertise” was of “limited value” when the government advocated for a right to sue.
Justice Breyer, writing the dissent for the four Democratic appointed Justices, could have covered the SEC’s back. He could have admonished the majority for disparaging the expertise of the administrative agency that understands the difficulty of the enforcement of the law and limits on its own abilities to punish wrongdoers. Deference to federal government agencies has been a major component of Breyer’s jurisprudence. For example, he is the author of the Court’s opinion in Credit Suisse Securities (USA) LLC v. Billing, which stated that the expert SEC was far superior to “nonexpert judges” and “nonexpert juries” in anti-trust cases. But Breyer’s dissent in Janus does not even mention that the federal agency took a position. There was no counterpunch to Thomas’s assault on the agency.
Thomas insisted that the holding in Janus was a direct result of the Court’s decision in Stoneridge Inc. Partners, LLC v. Scientific-Atlanta, Inc.In that case, Stevens wrote a vehement dissent protesting the Court’s “mistaken hostility” to court access. In Janus, Breyer attempted to distinguish Stoneridge on the facts, but he never responded to Thomas’s explicit disparagement of court access. Breyer’s dissent fails to champion the importance of court access for the protection of disadvantaged groups and ordinary individuals.
Indeed, the liberals this term joined forces with conservatives in denying court access in a case involving pharmaceutical companies overcharging Medicaid for prescription medications. In Astra USA Inc. v. Santa Clara County, California, the government advocated the denial of court access. Justice Ginsburg wrote the opinion for the unanimous Court deferring chapter and verse to the government’s amicus brief. It seems that when the government wants to shut off court access, the Court lavishes the government with deference. But if the government stands up for the rights of individuals, then its expertise is dismissed.
Without court access, all the rights Congress has enacted can be rendered meaningless. This includes the right to be free from discrimination, the right to monetary relief from fraudulent acts of corporations, and the right of poor children to medical insurance to pay for developmental screening. The civil rights, consumer protection, and safety net statutes passed by Congress can be emasculated by the closing of the courthouse doors. While the liberal justices may not be able to garner a majority to beat back this assault on individual rights, they should not abandon the fight. They should pick up the banner Justice Stevens formerly carried.