Tribe: SCOTUS Denying Access to Justice Because It’s an “Anti-court Court”

Tribe: SCOTUS Denying Access to Justice Because It’s an “Anti-court Court”

Image via Tribeca Citizen

By Arthur Bryant


Harvard Law School Professor Laurence Tribe, one of America’s preeminent constitutional scholars, says the U.S Supreme Court’s majority is not denying access to justice to consumers, workers, and civil rights plaintiffs just because it is “favorable to big business” and “doubts(s) that civil rights litigation does all that much good.” Tribe says the real reason is more fundamental and disturbing: The Roberts Court is an “anti-court Court.”

We cannot leave this be. Tribe offers one solution; I have two more.

Tribe’s new book, Uncertain Justice: The Roberts Court and the Constitution, co-authored with Joshua Matz, reviews and analyzes the Supreme Court’s rulings in several key areas – including equality, health care, campaign finance, freedom of speech, and privacy – since Chief Justice Roberts was appointed in 2005. In 2010, Tribe served as the first “senior counselor on access to justice” in the Obama administration. Perhaps for that reason, the final chapter of the book, “Making Rights Real: Access to Justice,” is the most revealing and instructive.

Tribe documents the Roberts Court’s “dramatic rewriting” of procedural rules to “unmistakably” favor big business, including an “assault on class actions” and rulings that make it “virtually impossible to escape arbitration agreements.” He writes:

With each passing day, public courts more permanently disappear as a real option for many Americans in their dealings with big business – when we seek employment, buy phones, sign up for nursing homes and open bank accounts… The proceedings are secret, arbitrators aren’t always bound by the law, there is no jury or right to appeal and companies sometimes pick their own arbitration firms.

The Court’s majority, moreover, isn’t just limiting access to justice to end the ability to hold businesses accountable:

Since 2005, the Roberts Court has issued a string of decisions that make it harder to hold the government accountable in court when it violates the Constitution…. The result is a shrinking judicial role in enforcing the Constitution and protecting our liberty.

Why is this happening? Most fundamentally, because the Roberts Court is “far more sensitive to the substantial burdens of litigation than to the potential benefits of lawsuits.” Tribe writes:

Whereas the midcentury Court saw itself as a protector of the powerless… the Roberts Court is mostly uninterested in that role…. It has dealt critical legal rules a death of a thousand cuts – leaving many of our rights intact but making them effectively impossible to enforce in any court…. It is an anti-court Court.

The Roberts Court’s anti-court decisions continue a trend that started in the 1990s and was discussed by University of Colorado Law School Professor Scott Moss in an insightful ACS Issue Brief, Judicial Hostility to Litigation and How It Impairs Legal Accountability for Corporations and Other Defendants (May 3, 2010). But, as Tribe shows, the problem has gotten much worse.

So what should we do?

Tribe has one answer – fight for justice outside of the courts:

It is more important than ever to recall that judges don’t have a monopoly on justice. When they retreat from the field or stand silent, we look elsewhere: to the democratic process, social movements, arbitration, our communities and families, consumer report websites, and other means of ensuring that everyone comply with the law. Indeed, the Constitution presumes that democracy, not litigation, is how we’re supposed to resolve many disputes.

But, as a constitutional lawyer and litigator, Tribe realizes this is not enough. He recognizes that “sometimes courts truly are the last, best hope for justice.” When the courthouse doors are closed, access to justice is denied.

So Tribe ends sadly, highlighting May 4, 2010, the day when the Supreme Court, citing security concerns, closed its great bronze courthouse doors, at the top of the marble steps under the inscription “Equal Justice Under Law,” to the public. He calls it a “perfect metaphor” for what the Court has done to access to justice itself.

I agree, but the battle is not over. So let me offer two other answers.

First, we need to keep using the courts, as much and as best we can, to hold corporations, the government and the powerful accountable – exposing the truth and making them pay for their wrongdoing.

Second, we need to keep fighting to preserve and expand access to justice. Nothing could be more important. That’s why Public Justice is about to launch a new, second decade of its Access to Justice Campaign.

The bottom line is that we cannot accept an anti-court Court. We need to develop a pro-court Court. Then we need to do what everyone in America should be able to do – go to court and get justice. 

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