The Umpire Changes the Rules

Chief Justice John Roberts, followed by Justice Antonin Scalia, arrives on the West Front of the Capitol in Washington, Monda
Chief Justice John Roberts, followed by Justice Antonin Scalia, arrives on the West Front of the Capitol in Washington, Monday, Jan. 21, 2013, for the Presidential Barack Obama's ceremonial swearing-in ceremony during the 57th Presidential Inauguration. Roberts will administer the presidential oath to President Barack Obama during the ceremonial swearing-in ceremony. (AP Photo/Win McNamee, Pool)

On Monday, October 7, the Supreme Court begins another term under Chief Justice John Roberts, who famously said during his 2005 confirmation hearings that he would favor neither the "little guy" nor the "big guy" but serve as an "umpire." The job of a judge, Roberts told the Senate, was "to call balls and strikes." Umpires, like judges, "don't make the rules; they apply them." But in case after case over the last eight years, the Roberts Court has done just the opposite, developing a 1 percent jurisprudence that favors wealth and power at most every turn, from cutting back on age, race, and sex discrimination suits to guaranteeing unlimited corporate spending in the political arena.

This isn't news. Many observers have slammed the Roberts Court for a record that doesn't remotely comport with the umpire role that the Chief Justice said he would play. And yet, some of the Court's most radical 1 percent rulings have received little notice outside the legal profession because of their technical nature. These are the decisions dealing with civil procedure.

The bane of every first-year law student, civil procedure involves the rules for litigating a case, such as when and how to file a complaint and which court to file it with. It's no surprise that most Americans pay scant attention to this area of the law. Rulings on procedure are packed with obscure jargon and don't directly involve the hot-button social or political issues -- abortion, gay marriage, money in politics -- that spur public interest in the Supreme Court.

But decisions about procedure can profoundly influence a lawsuit's outcome, such as by erecting barriers that turn a viable claim into a hopeless cause. And in recent years, the Roberts Court has effectively rewritten longstanding, basic rules of our procedural system in ways that give stunning advantages to corporations and the government at the expense of consumers, the poor, minorities, women, government detainees, and many others. The umpire, in short, has methodically been changing the rules, and all in favor of the "big guy."

Consider first the Roberts Court's decisions about "pleading" requirements: the way a plaintiff must draft his complaint to proceed with a lawsuit. Since 1938, when the Federal Rules of Civil Procedure were adopted, Rule 8 has required only a "short and plain statement" of the plaintiff's claim. The goal was simply to notify the defendant of the nature of the case (a broken contract, a deceptive consumer loan) and give him time to hire a lawyer and respond. The plaintiff was allowed to proceed unless there was no possible scenario under which he could win, in which case the court would dismiss it.

The point of this generous approach was to keep the courthouse doors open until the parties could fully investigate the facts of the case. Once the facts were fleshed out through "discovery" -- the exchange of documents, the taking of depositions -- the court could identify the truly legitimate disputes that merited a trial and then dispose of all the cases that didn't.

But in two recent cases (Twombly in 2007, Iqbal in 2009), the Roberts Court junked our notice pleading system and rewrote Rule 8 from scratch. Under the Court's newly concocted standard, a plaintiff can't proceed with his case unless he comes to court with facts showing that he has a "plausible" claim and a "reasonable" chance of prevailing.

This change might not seem like a big deal, but it has radically tipped the balance in favor of defendants, particularly corporations and the government. For one thing, the Court has set up a classic Catch-22. In many cases, especially against corporations or government officials, the defendant is in sole possession of the facts the plaintiff needs to make the case. For instance, in a suit claiming harm from a new drug, the data on its development and testing might well be found only in the pharmaceutical company's files. Similarly, workplace discrimination cases are usually proved with company records and the testimony of company officials and employees. A plaintiff can't get this drug data or workplace information without discovery, but can no longer reach the discovery stage without first putting at least some of the data or information in the complaint.

The problems go deeper. The Court in Iqbal directed the trial courts to start evaluating complaints using "judicial experience and common sense." These loose, undefined terms have given judges breathtaking leeway to decide which cases they'll allow to proceed and which to kick aside -- decisions that can be affected by the judge's values, preferences, and biases. The result is that judges are in some instances now playing the role of an early bird jury, making judgment calls about the facts and throwing cases out before duly selected jurors ever hear them. That's simply not how our judicial system is supposed to work.

The apparent reason for the Roberts Court's new Rule 8 decisions -- discovery can cost defendants a lot of time and money -- is no doubt a legitimate concern at times. But the Court has used a sledgehammer rather than a scalpel to address the problem, and plaintiffs alone are suffering the collateral damage.

Less opaque but equally devastating are the Roberts Court's decisions in the area of class-action litigation, which allows large numbers of plaintiffs to join together and sue a defendant in instances where few if any of them could afford to do so alone. In Wal-Mart v. Dukes (2011), which alleged nationwide discrimination against women by the retail giant, the Court made it far more difficult to secure class certification. The Court suddenly required a new, higher level of proof of discrimination across the entire class -- a showing the plaintiffs were unable to make despite producing abundant evidence of unfair and unequal treatment.

Americans are far more aware of Wal-Mart than the Rule 8 cases, but the decision's long-term impact is still not widely understood. In short, Wal-Mart will mean far fewer class certifications, and thus reduced enforcement of the antitrust, securities, and consumer protection laws meant to reign in corporate abuses. There are already warning signs: Class-action defendants are now flooding the courts with motions based on Wal-Mart in an effort to defeat a wide array of discrimination and labor cases.

Unwilling to stop there, the Court doubled down against class-action cases in AT&T Mobility v. Concepcion (2011), holding that a corporation can deprive customers of their right to bring class actions by sticking an individual arbitration clause into their cell-phone service contracts (which customers never bother to read, anyway). As Professor Arthur Miller of NYU Law School points out, the result is that powerful economic entities can impose such terms on consumers in contracts for everything from credit cards to securities accounts to car rentals.

And the arbitrations that consumers must resort to if they have complaints? The corporations often select the arbitrators, limit investigation of the facts, and keep the whole process secret. Worse still, the average consumer or small merchant who dares to challenge Big Business is almost certain to give up if the cost of arbitration exceeds any possible recovery -- which is another way of saying that our laws against corporate abuse, such as the antitrust statutes, will simply go unenforced. The Roberts Court admitted as much earlier this year in American Express v. Italian Colors Restaurant -- and then, amazingly enough, declared that it didn't matter.

What makes all of these procedural cases more striking is that they are so starkly at odds with the judicial philosophies espoused by the current Court's conservatives: strict adherence to legal texts, fidelity to original understandings, respect for history and tradition. None of the Roberts Court's decisions are based on the original meaning of the rules or on any change in the relevant texts. They all depart from the Court's own precedents, some of which were half a century old. And they all run contrary to the principle that amendments to the Federal Rules of Civil Procedure must be made not by new judicial interpretations but through a special process involving a rules advisory committee, the judicial conference, and Congress.

In the coming term, the Roberts Court will hear several more cases involving class actions and other areas of civil procedure. Will we finally see the umpire that the Chief Justice promised us? Or will he continue to move the foul lines and alter the strike zone to favor the rich and the powerful? Americans should keep their eyes on the Court.

Edward A. Purcell Jr. is the Joseph Solomon Distinguished Professor at New York Law School.