No Day in Court: Access to Justice and the Politics of Judicial Retrenchment.

Author:Bagenstos, Samuel R.
Position:Book review

No Day in Court: Access to Justice and the Politics of Judicial Retrenchment. By Sarah Staszak. Oxford and New York: Oxford University Press. 2015. Pp. x, 222. $29.95.


On March 31, 2015, the Supreme Court decided Armstrong v. Exceptional Child Center, Inc. (1) In Armstrong, the Court barred Medicaid providers from obtaining injunctive relief against states that have set reimbursement rates too low to comply with the Medicaid Act's requirement that rates be "sufficient to enlist enough providers." (2) The decision set off an immediate flurry of commentary among lawyers and academics. In a blog post on the afternoon of the ruling, for example, leading health law scholar Timothy Jost described the Court's ruling as "a momentous decision." (3)

Yet the New York Times did not publish an article about the Court's decision in Armstrong. Its only Supreme Court coverage in the next day's paper was a summary, on page three of the business section, of an oral argument the Court heard in a patent case. (4)

Why the absence of coverage? It was not for lack of drama and division on the Court. The Armstrong Court divided 5 to 4, and the lineup was unusual: Justice Kennedy, often the swing vote, joined Justice Sotomayor's dissent, along with Justices Ginsburg and Kagan. If Justice Breyer had stuck with his three other more liberal colleagues, the Medicaid providers would have prevailed. But Justice Breyer defected from his usual allies, and joined the Court's four most conservative Justices in Justice Scalia's majority opinion--though Justice Breyer issued his own concurrence explaining that he would not go quite as far as those four on one of the issues before the Court.

Nor was it for lack of real-world importance. Medicaid accounts for a quarter of the average state's budget and a significant fraction of every state's economy. (5) In a report issued the same day as the Armstrong decision, the Kaiser Family Foundation found that, "[a]s of January 2015, 70.0 million people were enrolled in Medicaid or CHIP [the related Children's Health Insurance Program]." (6) Whether those 70 million Americans will receive the health care they need--and to which the law entitles them--depends crucially on whether states set reimbursement rates that are sufficient to attract enough providers to serve them. And the opportunity for providers to go to court to force states to comply with the sufficient-rates requirement is important to ensuring that states do in fact comply with that requirement. Although Justice Breyer suggested in his concurrence that the Department of Health and Human Services could adequately enforce that requirement (by cutting off Medicaid funds to, and perhaps suing, offending states), (7) administrative remedies are not a realistic option in most cases. The department has limited resources (and uncertain authority) to bring enforcement actions. (8) And, like all funding agencies, the department is loath to use the one tool that it unquestionably possesses--the power to cut off federal funds--because doing so is likely to harm Medicaid beneficiaries even more than the state's failure to comply with the sufficient-rates requirement. (9)

Armstrong offered plenty of Supreme Court intrigue, not to mention enormous real-world impact. So why did the Court's opinion draw such little attention beyond a narrow circle of experts? Armstrong drew such little attention, I would argue, because it was a decision that focused on remedies. At least as a formal matter, the Court did not deny that the Medicaid Act gave states an obligation to ensure that their rates were sufficient to attract enough providers. It simply decided that provider-initiated lawsuits were not the proper means of enforcing that obligation. (10) Remedies decisions are yawners, seemingly of interest only to lawyers and other specialists.

As Armstrong shows, however, this perception is misguided. Decisions about the scope of available remedies can be exceptionally important in determining whether the rights and obligations created by the law are actually meaningful to those they purport to protect and regulate. That is hardly a new point. It is key to Holmes's "bad man" theory of law, of course." But although every practicing lawyer intuitively knows that a legal right or obligation is worth nothing more than the remedy for its violation, journalists and the general public too rarely focus on the important remedial questions addressed by courts.

That is a shame. As Sarah Staszak (12) shows in her book, No Day in Court: Access to Justice and the Politics of Judicial Retrenchment, the Supreme Court has repeatedly closed off avenues for enforcing civil rights in recent years. But rather than attend to these incredibly consequential remedial decisions, journalists--and even many scholars--have generally focused on the Court's substantive decisions regarding the scope of civil and constitutional rights. A number of those substantive decisions--notably including cases involving gay rights, (13) capital punishment, (14) and prison conditions (15)--have reached politically liberal results, even in the Rehnquist and Roberts Courts. But to look at those decisions and conclude that this is a moderate Supreme Court is to miss the more fundamental point that, whatever the scope of the substantive rights it is willing to recognize, the Court's remedial decisions have made it more difficult to vindicate those rights. As Staszak puts it, if we focus on those substantive decisions "we miss the more 'subterranean' realm where so much of the politics of retrenchment takes place, and where actual changes have had a demonstrable effect on access to the courts" (pp. 17-18).

Staszak's book focuses resolutely on the under-the-radar procedural rulings that in fact determine whether civil rights are meaningful. It offers a welcome corrective to accounts that look to the higher-profile rulings that define the scope of substantive rights. Although some other commentators have examined aspects of the Supreme Court's attack on civil-rights remedies, (16) Staszak offers the most comprehensive analysis available of this phenomenon by examining a range of seemingly disparate doctrinal contexts in which the Court has contributed to it.

In addition to its comprehensiveness, Staszak's book deserves great credit for the subtlety and complexity of its analysis. It is tempting to view the line of decisions that constrict remedies as simply the work of conservative judges who do not like civil-rights enforcement. But, as Staszak highlights, conservative judges have not been the only ones who have written or joined opinions placing procedural obstacles in the way of civil rights and other litigation. Liberal judges have done so as well. (17) And lawyers and others with a stake in the judicial process, many of whom carry a liberal reputation, have also supported many of the developments that have limited court remedies for civil-rights violations. (18) As Staszak puts it, "[t]he groups and political cleavages that pursue retrenchment have multifaceted interests that transcend partisan lines and change over time" (p. 35). This is an incredibly important point that prior work in the field has elided. Without accounting for that point, one cannot fully understand the politics of narrowing civil-rights remedies.

At times, however, Staszak bends over backward in her effort to find political complexity. Although she is surely right that the story of judicial retrenchment on civil-rights remedies is one of shifting alliances and positions over time, the dominant trend over the past two decades or so has been one of conservative judges succeeding in limiting litigation. (19) Sometimes, they followed a path that liberals and progressives had cleared decades earlier, when the ideological stakes were different. Other times, they have been joined by liberals for whom removing restrictions on vigorous government action trumps rights protection--and who, at least in the context of restraints on law-enforcement conduct, simply are not as liberal as they could be. Staszak's argument thus does not, ultimately, undermine the claim that today's judicial retrenchment is a fundamentally conservative project. It does, however, highlight the complexities of judicial politics.

In this Review, I elaborate on those points. Part I describes the Supreme Court's stealth assault on civil rights. Drawing from but going beyond the examples in Staszak's book, I show that the Court has made it much more difficult to vindicate civil rights even in cases in which it has not narrowed the substance of those rights. Part II assesses responsibility for this assault. I argue that it is largely a conservative phenomenon, though Staszak is right that liberals and progressives have given that phenomenon a substantial assist.


    The "subterranean realm" of decisions that have hamstrung civil-rights litigation has a number of interrelated components. Taken together, those components erect powerful barriers against judicial redress for plaintiffs--even those whose civil rights have in fact been violated. Staszak discusses a number of these barriers, particularly through the Court's interpretations of the Federal Rules of Civil Procedure and its restrictions of the remedies available to plaintiffs who overcome those procedural hurdles and prove a violation of their rights. In this Part, I discuss those procedural and remedial obstacles. I begin, however, with a barrier that Staszak does not extensively address--the Court's limitations on the circumstances in which plaintiffs have standing to sue in injunctive cases.

    1. Restrictive Standing Doctrine

      Thanks to the Burger Court's decisions in Allen v. Wright (20) and City of Los Angeles v. Lyons, (21) it is extremely difficult to have standing to get in the courthouse door and seek an injunction in many categories of civil-rights violations...

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