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.