The Roberts Court and the Civil Procedure Revival

By Wasserman, Howard M. | The Review of Litigation, Spring 2012 | Go to article overview

The Roberts Court and the Civil Procedure Revival


Wasserman, Howard M., The Review of Litigation


I. INTRODUCTION........................................................................ 313

II. ORGANIZING THEMES IN THE CIVIL PROCEDURE REVIVAL ..... 316

III. THE ROBERTS COURT AND OTHER RULEMAKING ACTORS...... 332

A. The Supreme Court and the Rules Enabling Act............. 333

B. The Supreme Court and the Lower Cowrtó......................338

C. The Court and Congress ................................................. 345

IV. CONCLUSION ........................................................................... 349

I. INTRODUCTION

Each Chief Justice of the United States makes his mark on his Court, leading different jurisprudential projects and agendas, and moving and developing the law in some area. The New Deal Court of Charles Evan Hughes extended government power and ultimately upheld the New Deal;1 the Warren Court is associated with the expansion of individual liberties, especially in the areas of racial equality, freedom of speech, and criminal procedure;2 the Rehnquist Court is associated with federalism.3 Even if a Court never completes its doctrinal project,4 it targets some area of the law in a particular direction. What a particular Court cares about may change over time and may not always be clear, especially in the early years of a new Court with a new Chief Justice and a mass of new members.

John G. Roberts was sworn in as Chief Justice of the United States in September 2005, and three Associate Justices have joined the Court since then.5 Entering its seventh Term in October 2011, the Roberts Court is newly engaged in an unexpected area - civil procedure. The Court includes four Justices whose backgrounds suggest particular solicitude for and perhaps keen interest in civil procedure: Chief Justice Roberts was a civil litigator; Justice Ginsburg, also a civil litigator, has written extensively on civil procedure; Justice Kagan taught civil procedure; and Justice Sotomayor was a district court judge for six years, meaning she alone among the Justices has worked with the Federal Rules and understands how they function on the ground.6 Over the past six Terms, the Court has heard and decided more than twenty cases hi core civil procedure areas, including pleading,7 summary judgment,8 relation back of amended pleadings, personal jurisdiction,10 federal question jurisdiction,11 diversity jurisdiction,12 jurisdictionality,13 removal procedure,14 class actions,15 civil representation,16 arbitration of civil and civil rights claims in lieu of litigation,17 appealability,18 remedies,19 and the Erie-Hanna doctrine.20 Several of these decisions have been significant and potentially far-reaching.

The Court's re-engagement with civil procedure is welcome. While the lower courts do an admirable job in creating, developing, and applying procedural law, the Supreme Court is a necessary source of procedural leadership and, we would hope, clarity - a point Roberts made in his confirmation hearings.21 Of course, having civil procedure on the doctrinal agenda will not draw the attention or ire of the popular media or the public; do not expect public calls to impeach Roberts over the scope of Rule 8(a). Indeed, it may not draw the attention of many beyond the civil procedure professoriate, and even then only with a modicum of sarcasm, hi June 2011, Justice Kagan announced the unanimous decision in Smith v. Bayer Corp., which dealt with the Anti-Injunction Act and the preclusive effect of a class certification decision, introducing the case as a "complicated procedural ruling."22 One blogger reporting at the Court restated this introduction as, "if you understand anything I say, you have a law degree AND you had your cup of coffee."23

If civil procedure and the Federal Rules comprise a significant part of the Roberts Court's emerging jurisprudential agenda, it is worth exploring the Court's activity in this area, both to see and understand the trend that has been developing and to predict where it might go in coming years. …

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