• Print

Josef K. in Washington

Anacleto Rapping/Los Angeles Times/Getty Images
Law professor Erwin Chemerinsky with students during a bar exam review course, Los Angeles, 2001

Erwin Chemerinsky is one of the country’s most distinguished legal scholars—the dean of the University of California, Berkeley School of Law, the author of several books, and a frequent commentator on the Supreme Court who is able to explain legal complexities clearly. His subject in Closing the Courthouse Door is a dozen legal doctrines that make it difficult or impossible to vindicate our constitutional rights through the judicial system. A few were created by Congress, but mostly they are the work of the Supreme Court, which in his view goes to great lengths to stop Americans from getting their day in court. The twentieth-century expansion of civil liberties and civil rights encouraged Americans to go to court to hold government and business more accountable. The Court responded by reinterpreting the Constitution and procedural rules to stop lawsuits it viewed as undesirable.

Many of these doctrines are not well understood by people outside the legal profession. For example, as Chemerinsky observes:

If the Supreme Court were to hold that the government can give unlimited amounts of money to religious schools, the decision would make the front-page headline of every newspaper in the country. But if the Court were to hold that no one has standing to challenge the government when it gives money to parochial schools, that would get far less attention. Yet the effect is exactly the same: if no one can challenge a government action in court, the government can do what it wants.

Article 3 of the Constitution ensures that the courts only hear genuine “cases and controversies,” but it was not until the 1920s that the Supreme Court began using it to limit who can sue the government. In 1992, the Court declared, in Lujan v. Defenders of Wildlife, that citizens lack standing to challenge a government action in court unless it causes “a concrete and particularized” injury to the person suing. Chemerinsky thinks this is absurd: he argues that “it makes no sense to have a situation where no one can sue because of a hypothetical concern over wanting to make sure that there is the best plaintiff.” (True to his principles, Chemerinsky is one of the legal scholars who has filed a lawsuit challenging Donald Trump’s business ties as a violation of the Constitution’s emoluments clause—a challenge that some experts predict will fail for lack of standing.)

What is standing? The standing doctrine prevented Adolpho Lyons, an African-American choked until he became unconscious by Los Angeles police in a routine traffic stop in 1976, from requesting an injunction against the LAPD’s chokehold policies. He was able to sue for his injuries and collected a nominal settlement, but the Supreme Court declared that Lyons could not challenge the police policy of using chokeholds, because he could not show that he would likely be the victim of one in the future. Obviously, nobody could show that—and so nobody has standing to challenge the policy in court. Police officers continue to use chokeholds, as the death of Eric Garner in 2014 reminds us.

In addition to the restrictions imposed by the doctrine of standing, immunity doctrines invented by the Court prevent victims of misdeeds by government officials from holding them accountable. There is, first of all, the sovereign immunity of states. The Eleventh Amendment to the Constitution, ratified in 1795, immunizes states against lawsuits in federal court, but only if they are brought by citizens of another state or a foreign country. In 1890, the Supreme Court reinterpreted the Eleventh Amendment as immunizing states against federal suits brought by their own citizens, and in Alden v. Maine (1999) it ruled that states could not be sued in state courts without their consent.

Writing for the Court in Alden, Justice Anthony Kennedy argued that sovereign immunity derived from “the structure of the original Constitution itself,” which “specifically recognizes the States as sovereign entities” that could not be sued by their own citizens. Chemerinsky insists, however, that “the fact that the Constitution preserved the states as entities says absolutely nothing about whether they should have immunity in state court, or sovereign immunity more generally.” In England the king was above the law, and although Kennedy conceded that “the American people had rejected other aspects of English political theory,” apparently they never rejected this one. State immunity was so self-evident, he argued, that the framers saw no need to put it in the Constitution.

This disregards history: the Eleventh Amendment was adopted because of the Court’s ruling in Chisolm v. Georgia (1793) that states did not have immunity from suits filed in federal court by citizens of other states. Furthermore, had Congress wanted to immunize the states from all lawsuits, it could easily have written the Eleventh Amendment that way. Ironically the professed textualist Justice Antonin Scalia joined the majority in Alden in ignoring the constitutional text and granting the states such blanket immunity.

Undoubtedly, sovereign immunity saves the states money for legal representation and damages, and the Supreme Court admitted that this influenced its decision. But stiffing creditors would also save the states money. Chemerinsky is on strong ground when he rejects the entire immunity doctrine as an enemy of government accountability. He is on shakier ground when he predicts that some future Supreme Court will abolish sovereign immunity. More than a hundred years of Court majorities have proven more than willing to protect state treasuries against individuals the government has harmed.

The Court protects not only state treasuries, but state officials as well. In one remarkably vile case in 1971, Stump v. Sparkman, Harold Stump, an Indiana county judge, granted a mother’s secret request to have her fifteen-year-old daughter sterilized because she was spending the night with “older youth or young men.” Without holding a hearing or taking evidence, and without notifying the daughter, the judge hastily ordered the surgery, and the daughter—who was told she needed an appendectomy—was irreversibly sterilized. She found out years later when she and her husband were unable to conceive a child. She sued her mother, her mother’s lawyer, the doctor, and the judge. In Chemerinsky’s view, “the case against Judge Stump should have been easy,” but the Supreme Court held that the judge had absolute immunity for his transparently illegal court order. And, Chemerinsky writes, the Court has extended immunity to practically all other government officials as well:

Absolute immunity exists for judges for their judicial acts, for prosecutors for their prosecutorial acts, for legislators for their legislative acts, for law enforcement personnel testifying as witnesses, and for the President for presidential acts. All other government officers are protected by qualified immunity and are liable only if they violate clearly established law that every reasonable officer should know, and only if the right they violate is established beyond dispute.

In Bivens v. Six Unknown Named Agents (1971), the Supreme Court found that federal officials—not the federal government itself—can be sued for violating constitutional rights, but since then it has become increasingly difficult to file such lawsuits (referred to as “Bivens suits”). In the first fourteen years after Bivens, plaintiffs won only four such cases out of 12,000, and received settlements in fewer than one percent of them. In one case, a prison health officer refused to treat a prisoner’s penile cancer with anything but ibuprofen and an extra ration of boxer shorts. The prisoner died after an emergency amputation of his penis, but the Court unanimously upheld Congress’s power to immunize the health officer from a lawsuit filed by the dying man.

In other ways as well, the Court has limited Bivens until very little remains. In Carlson v. Green (1980) it found that a Bivens suit cannot be filed if there is any alternative remedy, no matter how inadequate, and in Correctional Services Corporation v. Malesko (2001) it ruled that government contractors, including those working in private prisons, can’t be sued under Bivens. A case currently before the Court involves a Bivens suit by the parents of a fifteen-year-old Mexican citizen who was gunned down in Mexican territory by a Border Patrol agent on the US side of the border. The government’s position was that Bivens does not apply to cross-border conduct. Rather than reject this argument, the Court deferred until the lower court could reconsider in light of a new Bivens case the Court decided a few days earlier—in which the plaintiff suing the government lost.

In criminal cases, Congress and the Court have dramatically reduced federal judicial review of convictions and sentences pursued through habeas corpus petitions. (“Habeas corpus,” Chemerinksy explains, “allows a federal court to provide relief to a person who was convicted or sentenced in violation of the Constitution and laws of the United States,” and has been used, for example, to challenge “grossly disproportionate” sentences.) Apparently troubled by repeated prisoner petitions, the Court has erected technical barriers to them. For example, it found that petitioners who failed to raise their constitutional challenge in state court cannot later raise it in a habeas petition, in effect dooming those whose defense lawyers failed to raise the challenge earlier. In 1996, during an upsurge of tough-on-crime sentiment, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). One of its stated aims was reducing the number of appeals filed in death penalty cases, and it erected further obstacles to habeas petitions, including a one-year statute of limitations.

More importantly, AEDPA forbids habeas petitions unless the state court decision against the prisoner was an “unreasonable application of clearly established federal law.” In the Court’s view, this means that the error in the state court’s decision must be “beyond any possibility for fairminded disagreement.” But as Judge Stephen Reinhardt explains:

If the “fairminded jurist” rule were taken literally, it would mean that a federal court could never grant habeas relief. That is because, in order to grant habeas relief, we would need to find that each of the state court judges who denied the petitioner’s claim was not fairminded…. In fact, under the Court’s rationale, if only a single Supreme Court justice agreed with the state court, the rest of the Court would have to adopt the view that the dissenting Justice was not “fairminded” in order to grant habeas relief.

Chemerinsky attacks not only doctrines that reduce government accountability but also those that protect private defendants by keeping plaintiffs out of court. In 1938, the Federal Rules of Civil Procedure made it possible to initiate a lawsuit by filing a plain-language complaint setting out what the plaintiff intends to prove. Because plaintiffs cannot begin acquiring information from the defendant (in the process called “discovery”) until a complaint is filed, the rule ensures that complaints will not be dismissed for lack of evidence. Injured persons claiming that a company knew its products were unsafe or plaintiffs claiming employment discrimination, for instance, normally need discovery to prove their case, and the legal reformers who drafted the 1938 rules aimed to make this possible. Convinced that legal technicalities were keeping legitimate lawsuits out of court, the Court followed their recommendation and created an open-door policy.

However, in Ashcroft v. Iqbal (2009), the Supreme Court unexpectedly reversed this seventy-year-old rule. The Pakistani-American plaintiff had been arrested in November 2001 in relation to the September 11 attacks and held for months. He charged that he was arrested solely on the basis of his religion and ethnic background, but to win the case he would have to prove the discriminatory motive of the officials he was suing. For that, he would need discovery. But the Court demanded that when plaintiffs file complaints, they must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

As one writer puts it, the decision threatens to trap plaintiffs in the catch-22 of needing discovery to get discovery. Citing two studies, Chemerinsky argues that Iqbal has had harsh effects on civil rights plaintiffs as well as criminal defendants, and has led to cases being dismissed much more frequently. Here, however, matters are not as clear as he suggests; there have been more than a dozen studies of Iqbal’s effect, and they disagree substantially over whether it has made a difference.

Other doctrines that limit access to courts include restrictions on class actions, which are the only way that large groups of consumers who individually suffer relatively small losses from corporate misconduct can afford to bring suit. The Court has made it harder to certify classes and has imposed requirements that plaintiffs give notice to all individuals who might be affected by the case, which can be extremely expensive. Furthermore, it has upheld arbitration clauses that forbid class actions, even if state law declares those clauses illegal because consumers and employees have no real choice whether to sign the contracts that require arbitration. Justice Scalia, writing for the majority in ATT Mobility v. Concepcion (2011), explained that if defendants face the threat of class actions they “will be pressured into settling questionable claims.” In Chemerinsky’s words, “the Court’s desire to protect business and its hostility to class action suits could not have been more clearly stated.” (I once heard a distinguished federal judge quip that Justice Scalia’s definition of a frivolous lawsuit was any lawsuit that the plaintiff wins.)

Chemerinsky might have mentioned additional doctrines created by the Court that make it hard for civil rights plaintiffs to bring their cases to trial. Recognizing that civil rights cases don’t always provide plaintiffs with a financial remedy, in 1976 Congress passed a law permitting courts to award attorneys’ fees to prevailing parties in many such cases. The Court has since whittled away at that law. In 1985 it ruled that prevailing plaintiffs would not be entitled to compensation for any attorneys’ fees incurred after a settlement was offered unless the settlement was less than the award at trial; a year later it allowed defendants to offer settlements on the condition that plaintiffs waive their right to attorneys’ fees. In one case, the Court ruled that plaintiffs would not be entitled to attorneys’ fees if the defendant provides the relief a plaintiff requests, even if the case has gone on for years, with the legal bills mounting. The decision empowered defendants whose strategy is to bankrupt public-interest law firms by drawing a case out for years and then granting the requested relief at the last moment before trial.

In Chemerinsky’s view, the basic mission of the federal courts is not to settle disputes among litigants, but to interpret and enforce the US Constitution, while safeguarding it from the will of political majorities. The judiciary’s job is

to serve as the nation’s moral conscience—an institution responsible for identifying values so important that they should not be sacrificed, and reminding the country when its own most cherished values are being violated.

If this is indeed the judiciary’s task, then the doctrines Chemerinsky discusses, including many unanimous decisions to throw cases out of court, are a regrettable failure. Chemerinsky clearly sees matters that way. But readers are likely to come away from his book with a far less agreeable and idealistic image of how the Supreme Court views its mission: it labors hard to keep cases out of court, and it succeeds regularly, decade after decade. Perhaps the Court does so out of fear of a flood of frivolous litigation, perhaps out of a bias toward giving government officials a wide margin of error, or perhaps out of a political ideology of “our Federalism,” the Court’s sentimentalized term for favoring states’ rights over national government (except when the state courts are too friendly to class action plaintiffs, in which cases, under the Class Action Fairness Act of 2005, the suits are moved to the federal courts).

Chemerinsky’s single-minded focus on the Constitution above all else sometimes leads to a distorted understanding of particular cases. He begins his book by describing a lawsuit brought by women who were sexually harassed and raped while serving in the military. Their case was thrown out of federal court because the military enjoys sovereign immunity. The Court of Appeals wrote:

We do not take lightly the severity of plaintiffs’ suffering or the harm done by sexual assault and retaliation in our military. But the existence of grievous wrongs does not free the judiciary to authorize any and all suits that might seem just.

Chemerinsky rightly disagrees, but he emphasizes only that the women’s constitutional rights were violated, which was their legal cause of action but hardly the main point. Their bodies were violated, their trust was violated, their natural and moral rights were violated, their statutory rights were violated, their rights to compensation were violated. To mention only their constitutional rights exalts legal theory over other human values.

If Chemerinsky’s book has a weakness, it is an overemphasis on legal doctrines. Almost all his source material, including the facts of individual cases, comes from judicial opinions and law review articles about them. Only once or twice does he discuss the political motivations that make conservatives so eager to close the courthouse doors. Nor does he highlight the practical obstacle to legal vindication: the enormous expense of bringing cases and the unavailability of lawyers that Judge Jed S. Rakoff has discussed in these pages.* President Trump’s proposed budget eliminates funding for the Legal Services Corporation, which provides legal assistance to those who can’t afford it, and which already receives inadequate support.

The politics and economics matter. For decades, business-backed tort reformers have tried to reduce the number of lawsuits by aggressively peddling fictions about our civil justice system: that America is the most litigious country in the world, that the courts are flooded with frivolous cases, that punitive damages are out of control, and that litigation is putting doctors out of business and curtailing municipal services. In fact, litigation rates are in line with the rest of the world, large punitive awards are rare, and tort cases are in decline. In March, the House of Representatives nevertheless passed three new tort reform laws that would further protect corporations from lawsuits. As the legal scholar Richard Abel wrote thirty years ago, the real tort crisis is that there are too few claims, not too many: in a weakened regulatory state—which now appears to be the aim of the Trump administration—the tort system is a crucial deterrent of corporate misconduct.

Closing the Courthouse Door went to press before the 2016 election, and a few poignant pages find Chemerinsky hoping for a liberal fifth vote on the Supreme Court. Instead, Justice Neil Gorsuch’s judicial record suggests that he will be a mostly reliable vote for keeping the courthouse doors closed, except for businesses challenging regulations. Perhaps, though, focusing on individual justices misses the point. Chemerinsky’s previous, tough-minded book The Case Against the Supreme Court (2014) argued that through most of its history the Supreme Court has only faintheartedly sought to uphold constitutional rights. It’s surprising, then, that he remains convinced that a future Congress or Court will once again open the courthouse doors, instead of standing like Kafka’s doorkeeper to keep the supplicants out.

  1. *

    Jed S. Rakoff, “Why You Won’t Get Your Day in Court,” The New York Review, November 24, 2016.