Justice Souter and the civil rules.

• Author: Dodson, Scott

1. INTRODUCTION

   On April 30, 2009, after almost twenty years on the U.S. Supreme Court, Justice David Hackett Souter announced his retirement. (1) A quiet personality never comfortable in the D.C. spotlight (2) (except, perhaps, during his confirmation hearings (3)), Justice Souter was rarely characterized as a force on the Court. (4) No doubt his legacy will be marked in large part--and perhaps unfairly--by his membership in the Planned Parenthood of Southeastern Pennsylvania v. Casey (5) troika and his apparent Blackmun-like slide while on the Court from conservative to liberal (at least, as relative to the Court as a whole). (6)

   Despite his momentous contribution to Casey and the role that that case has played, (7) we ought to be wary of remembering Justice Souter only as a co-author of that single case, a Republican disappointment, or a liberal savior. He did, after all, write 326 opinions while on the Supreme Court (8) (and lent an often crucial vote to hundreds more), including memorable opinions in areas of constitutional criminal law, (9) equal protection, (10) the First Amendment, (11) and federalism. (12) Even in the relatively apolitical world of federal procedure, Justice Souter left an impression. He wrote extensively on the Federal Arbitration Act, (13) voiced thoughtful views on the doctrine of standing, (14) and moved the law forward in the areas of preemption (15) and federal question jurisdiction. (16)

   We should, therefore, consider more of Justice Souter in commenting on his legacy. I will not attempt a comprehensive look--I leave that for the biographers and Court-watchers. But I will strive to offer a different view of Justice Souter, one that is itself admittedly narrow, but at least is outside of the proverbial defining moments and thus provides, perhaps, an enriching perspective. I focus on Justice Souter's views on the federal civil rules. (17)

   Justice Souter appears to have shied away from writing opinions that addressed the civil rules for most of his tenure on the Court. The first opinion he wrote--either for the Court or for himself--that directly addressed a federal civil rule was Ortiz v. Fibreboard Corp., (18) issued almost a decade after he joined the Court. over the next eight years, he authored only one other opinion on the civil rules, dissenting in Mayle v. Felix. (19) After mid-2007, however, Justice Souter showed considerably more willingness to write on the civil rules. In the span of a little over two years, he authored the blockbuster pleadings case, Bell Atlantic Corp. v. Twombly; (20) a passionate dissent in Bowles v. Russell; (21) and a dissent in Twombly's equally important progeny, Ashcroftv. Iqbal (22)

   A survey of these five opinions by Justice Souter reveals that he is not uniformly historicist, textualist, formalist, instrumentalist, pragmaticist, or minimalist when it comes to the civil rules. It does, however, manifest a commitment to construing the civil rules in a way that would treat litigants fairly in court. (23)

   To be sure, there are many different conceptions of procedural fairness. One Justice's fairness may be another's folly. My aim is not to define and evaluate the merits of Justice Souter's somewhat ad hoc conception of individualized procedural fairness here (which might be quite different than, say, Justice Scalia's conception of fairness as discretion-limiting rules or, perhaps, Justice Breyer's conception of systemic fairness through pragmatism); rather, I aim to show only that he was committed to his particular version of it.

   That commitment manifests itself most clearly through the words that Justice Souter chose to explain his reasoning in these cases. (24) In each one, he consistently expressed that commitment in a variety of contexts, including concern for the fair treatment of unrepresented class members, pro se plaintiffs, parties relying on judicial decrees, defendants seeking to avoid burdensome discovery, and plaintiffs seeking access to civil justice. In short, Justice Souter's own words show his deep commitment to the fair procedural treatment of individual litigants in our civil justice system.

2. JUSTICE SOUTER'S CIVIL RULES OPINIONS

   Each of Justice Souter's five major opinions implicating the civil rules--Ortiz, Mayle, Bowles, Twombly, and Iqbal--shows his concern for the fair treatment of civil litigants.

   1. Ortiz

      In Ortiz, (25) that concern was for absent class members faced with inadequate representation and the inability to opt out of the resulting settlement of their claims. Ortiz involved the certification of an asbestos class action submitted for settlement approval. The settlement was negotiated in the midst of the asbestos litigation crisis--hundreds of thousands of potential claimants existed, and asbestos manufacturers did not have the funds to pay all of the claims. Just a few years previously, in Amchem Products, Inc. v. Windsor, the Court had acknowledged the crisis and pleaded for a pragmatic legislative solution, (26) but that did not happen, and the crisis came to the Court again in Ortiz.

      In Ortiz, the parties agreed to a settlement, whereby the principal defendant, Fibreboard (which was on the verge of bankruptcy), would fund a trust to process and pay class members' asbestos claims, but the entitlements would be substantially limited. (27) Fibreboard's looming insolvency and the need for an end to the asbestos crisis might have prompted some, such as Justice Breyer, to overlook some protections to unnamed class members in order to resolve the crisis pragmatically. (28)

      But Justice Souter would not. Vacating the settlement order, Justice Souter held that the class action failed to meet the requirements of a so-called "limited fund" class under Rule 23(b)(1) because the settlement fund was limited by agreement rather than external factors. He expressed concern that the fund was limited not by necessity, but by conflicted class counsel, to the detriment of the unnamed class members, who could not opt out of a biased settlement. In addition, fairness to the unnamed class members, who can neither opt out nor have their voices heard throughout the settlement negotiation process, required heightened attention to Rule 23(a)'s structural due process protections, which the Ortiz settlement did not meet. (29)

      Justice Souter's opinion is meticulous, and its jurisprudence is varied. In places, he is traditionalist, hewing closely to the historical model of a "limited fund" in assessing its scope. (30) In others, he is originalist, conforming to the meaning that Rule 23 had at its adoption. (31) In still others, he is a dutiful follower of precedent, namely Amchem. (32) Overall, he is shockingly un-pragmatic. Unlike Justice Breyer, who--in dissent--suggested that he might relax the strictures of Rule 23 to deal with the crisis pragmatically, Justice Souter's opinion adheres rigidly to Rule 23 and the rulemaking process that produced it. (33)

      But, tellingly, what underlay his formalism was a deep concern for unnamed class members and the overall fairness of the class litigation. He was skeptical of the class representatives' and counsels' assertions without a more thorough independent scrutiny of the fund and its fairness to all of the class plaintiffs. (34) As he wrote, "[W]e are not free to dispense with the safeguards that have protected mandatory class members...." (35)

   2. Mayle

      Mayle v. Felix (36) showed Justice Souter's conception of fairness in a different light--as a concern for pro se litigants. The issue in Mayle was whether Rule 15(c) of the Federal Rules of Civil Procedure allows a habeas petitioner to add an untimely claim to a petition that originally was filed timely. That issue was implicated by convicted felon Jacoby Felix, who filed, pro se, a timely civil habeas petition, alleging a violation of the Sixth Amendment's Confrontation Clause. (37) Three months before the expiration of the habeas statute's one-year time limit, (38) the district court appointed him counsel. Five months after the time limit, and before any responsive...