The Roberts Court and access to justice.

• Author: Nichol, Gene R.
• Position: Law Review Symposium 2009

I am honored to be here. Just off a stint as a university president, I may be the only person in America who actually misses talking to lawyers. And I'm glad to be here at Case Western--to be re-introduced to old friends, and new. That includes, for me, your former dean, Gary Simson, who was my teacher.

Dean Simson is largely responsible for my becoming an academic. I wrote a paper for one of his classes that he convinced me to have published. I certainly never would have done that on my own. And since I was too bull-headed to do law review--not as thoughtful as the marvelous group of students who have put together these discussions--if I hadn't published that article, I would never have been able to get a job as an academic. The University of Texas wasn't exactly a "feeder" school.

There has been a time or two in the last couple of years when I thought about Gary getting me into the academy, and I've been fairly bitter about it. But I've always had great affection for Dean Simson. When I was sitting in his equal protection class in 1976, I was a football player from Oklahoma State University, with hair down his back, who, on most days, dressed only in overalls. It is horrifying to contemplate.

I am also glad to come to Cleveland. Anybody who still believes that "Major League" is the greatest American film, and Randy Newman's "Burn On" is the closest we've come to true classical music, has to look forward to coming to Cleveland. I also clerked for Squire Sanders & Dempsey after my second year of law school. I lived, for the summer, in a non-air conditioned third floor walk-up in East Cleveland. It was there that I learned that Ohio is actually much hotter than Texas in the summer. About that same time, the Supreme Court decided my favorite case, Moore v. East Cleveland. (1) I had always understood why Mrs. Moore wanted to be able to live in the same house with her two grandkids. After that summer, I just never knew why she wanted to do it in East Cleveland.

I do have a topic, you'll be relieved to hear: "The Roberts Court and Access to Justice." Not simple. Not narrow. Not uniform. Not, I think, single-minded. Not unimportant. Not good, I started to say. But I'll hold off on that for a bit.

Thinking about access--for this Court and for its predecessors--necessarily includes much. It surely implicates a bevy of issues even well beyond the long list we are discussing today. It explores, of course, the traditional tools of access--standing, (2) mootness, ripeness, political question, (3) the congressional bestowal and stripping of jurisdiction, (4) the expansion of the Eleventh Amendment (5) and other immunities, (6) the continued dwindling of the writ of habeas corpus (both statutorily and through judicial crankiness), and the increased reluctance to entertain facial (7) or vagueness challenges (8) to statutory regimes.

But it moves, as well, far beyond concepts of jurisdiction to broadened standards of federal preemption, (9) to tightened statutes (or notions) of limitation, (10) to new restrictions on the availability of punitive damages (11)--decisions which have led many, including, the Kiplinger Business Report, (12) the Wall Street Journal, and Erwin Chemerinsky, (13) three brothers in the bond, to tag the Court as decidedly pro-business. (14)

A portrait of effective access would also turn to narrowed doors for implied statutory causes of action (15) and to similar sentiments in Bivens (16) claims--arguing that "'Bivens is a relic of the heady days in which [the] Court assumed common-law powers to create causes of action.'" (17) A relic, the argument goes, that should be interred. And I have at least one friend, a trier of civil rights cases, who claims that the most worrisome limitation on judicial access of the past two decades is the dramatically altered availability of summary judgment in section 1983 cases--with its resulting foreclosure of rights to jury trial. (18)

Nor can the just-beginning-to-unfold legacy of the Roberts Court and access to the judiciary be illustrated only by door-closing ventures. Though the newest appointees have usually dissented, the high Court' s recent detainee decisions break remarkable ground in the assurance of a federal judicial forum. (19) Boumediene v. Bush (20) is a surprising and, by my lights, courageous decision for this or any other tribunal. Not only did the Court invalidate a statute under the habeas corpus clause, rule against two branches of government acting in concert under claims of national security, and prevent an explicit and unequivocal effort to restrict the jurisdiction of the federal courts, but, it has been argued, it offered "the most aggressive exercise of judicial review of wartime measures adopted by the political branches in our nation's history." (21) Boumediene is neither timid nor exclusionary.

And few modern constitutional law decisions open the courthouse doors more generously and more enthusiastically than District of Columbia v. Heller, (22) last summer's handgun case. Until then, as Justice Stevens indicated, it had been understood that legislatures could "regulate the civilian use.., of firearms so long as they [did] not interfere with the preservation" of, as the term goes, "a well-regulated militia." (23) The Roberts majority decidedly "upset[] that settled understanding" while leaving to "future cases the formidable task of defining the scope of permissible regulations." (24)

The Heller opinion speaks in sweeping terms, reminding that any "balancing" of interests required had already been accomplished, in 1791, by the people. Alan Morrison may be right that, under Heller, we're in for a "round of [lawyers'] full employment"--though I'm guessing it's not listed as part of the federal stimulus package. (25) But reportedly the National Rifle Association has already launched. (26) And the Justices are seemingly unconcerned about their stunning absence of expertise to venture so boldly into such an arena.

So it is possible to see the Roberts Court's commitment to judicial access from different and varied vantage points, and as reflecting differing levels of consistency and commitment. I suppose it is not surprising, speaking broadly though, that scholars like Kathleen Sullivan would declare: "'[w]hat we actually have is a pretty bold conservative agenda but it's clothed in the gentle language of traditional modesty and restraint.'" (27) Or that the Wall Street Journal would enthuse that "the biggest change under Chief Justice John Roberts might not involve who wins on the merits. Rather, it may be who gets through the courthouse door in the first place." (28)

Like the Burger and Rehnquist Courts before it, the Roberts tribunal seems to show greater zest for limiting the forms, remedies, and processes of constitutional adjudication than in reversing the bold strokes of its predecessors on the merits. (29) This is, after all, mere lawyers' work; hardly the stuff of major headlines and pointed political campaigns--though Lilly Ledbetter proved the exception to that generally-accurate rule. (30)

But the predilection for process is why, to wildly over-generalize, constitutional law casebooks seem like something of a mish-mash of stutter-steps expanding and contracting constitutional accountability; while federal courts books deliver more of a forced march, across an array of fronts; with decisions pointedly opening the federal forum in the '60s and early '70s, followed by a current of cases later in the '70s and then again in the '80s and '90s, and now taking away what seemed to have been given.

I add only two brief points before turning, as requested, to the underappreciated wonders of the case or controversy requirement. The first is that, as we explore, throughout the day, the multiple dimensions of the Roberts Court's treatment of access, it might be well to remind of what we invariably leave out. Any discussion of access to our judicial system with a thoughtful visitor from a distant culture and clime would surely begin with our strongest transgression against access and equality--the exclusion from the voluntary use of the civil justice system of that huge proportion of the populace who cannot afford to pay the fare. Not to put too fine a point on it, but we carve "equal justice under law" on our courthouse walls. For decades, we have announced as a fundamental principle of our constitutive law that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (31) Yet study after study shows that at least 80 percent of the legal need of the poor in this country is unmet. (32) And the circumstance is almost as bleak for middle-income Americans. What passes for civil justice among the have-nots is astonishing. It cannot be counted, actually, as a system of justice. Yet the inequity does not provoke the attention of the Court that sits atop its structures. (33) Nor, too frequently, does it make it to the core of curricula and research in the legal academy we love. For that, it is hard to find anything like an adequate excuse.

Second, having just returned from a cold twentieth of January trip to the nation's capital, one of the most important things to be said about access to justice and a Roberts Court--apart from my prediction that our ever-confident Chief Justice will use a cheat-sheet in 2013, or else turn the duties over to Justice Stevens, who will, by then, be approximately 109--may well be that there won't really be one. That is, there won't be a "Roberts Court."

The high Court of the next decade may well bear the Chief Justice's name, but it will be a good deal less likely to profoundly bear the marks of his predilections. An Obama presidency, whatever else it...