Chief Justice John Roberts seeks to limit role of courts

By Richard Wolf

WASHINGTON — By siding with the Supreme Court’s liberal wing on two major cases last week, Chief Justice John Roberts lent credence to conservatives’ concerns that they can’t count on his vote.

But as he moves into his second decade as the nation’s 17th chief justice, Roberts is proving to be strikingly consistent in one area that conservatives applaud. He wants to close the courthouse doors to challengers with tenuous legal grounds or claims, thereby limiting the role of the judicial branch he leads.

That desire has been on display regularly during the first half of the high court’s 2015 term, both in rulings Roberts joined and in those he opposed. At nearly every opportunity, he voted to limit plaintiffs’ access — demanding that they prove being harmed, back up their challenge with facts, and opt for arbitration over litigation.

The chief justice wrote the court’s first decision of the term, ruling Dec. 1 that a California woman had no right to sue the Austrian national railroad in a U.S. court for severe injuries she suffered on a train platform in Innsbruck.

Two weeks later, he joined the court’s 6-3 majority ruling that California customers cannot join a class action lawsuit against satellite TV provider DIRECTV because a federal law favoring arbitration over litigation trumps state law.

Roberts closed out the month in his year-end report Dec. 31 by lauding federal rules changes aimed at cutting down on frivolous lawsuits and dilatory practices that delay justice. In essence, he called for a leaner, meaner federal bench and bar.

“We must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice,” Roberts said.

Last month, Roberts didn’t get his way in a class-action decision written by Justice Ruth Bader Ginsburg that let a plaintiff pursue his case even after the company he sued offered full restitution. The chief justice wrote a stinging, 10-page dissent.

“A plaintiff is not the judge of whether federal litigation is necessary, and a mere desire that there be federal litigation — for whatever reason — does not make it necessary,” Roberts said.

Two more class action cases argued in November likely will be decided soon. In both cases, Roberts asked skeptical questions.

The bigger showdown may come in April, when the court hears the Obama administration’s challenge to a federal appeals court order blocking its immigration initiative. The program would delay deportation of more than 4 million adults whose children are citizens or lawful residents.

A key question is whether Texas and 25 other states are qualified to bring the case, based solely on the cost of issuing driver’s licenses. If Roberts holds true to form on court “standing,” his vote might help the administration.

More malleable on other issues, to the consternation of conservatives, Roberts has been a stickler on court access his entire career. At his confirmation hearing in 2005, he cited Chief Justice John Jay’s refusal in 1793 to offer advice to President George Washington on the war between Great Britain and France. He dredged up that 223-year-old letter again in his recent class action dissent.

“Judges should be very careful to make sure they’ve got a real case or controversy before them,” Roberts said.

Over the years, the chief justice has consistently voted to close the courthouse doors on claims and claimants he judged to be dubious — and not only when it benefited the conservative cause. His refusal in 2013 to let opponents of gay marriage in California represent the state in a lawsuit brought by gay and lesbian couples brought same-sex marriage to the nation’s most populous state.

In a report on Roberts’ first decade as chief justice, the liberal Constitutional Accountability Center found him uniformly stingy on standing and generous on forced arbitration.

“He has repeatedly emphasized that the role of the courts should be limited, that they’re not there to solve policy debates,” says Elizabeth Wydra, the group’s president.

Roberts’ preferences and his court’s precedents are starting to filter down to lower federal courts. In the year ending Sept. 30, the number of cases filed at federal appellate, district and bankruptcy cases all declined, following a trend begun several years ago. The Supreme Court has seen a 13% drop over five years.

To liberals, the trend is ominous. Brian Wolfman, co-director of the Supreme Court litigation clinic at Stanford Law School and former director of Public Citizen Litigation Group, says the trend from class action lawsuits toward arbitration penalizes consumers and workers who cannot afford to sue on their own.

“The consumer is effectively shut out from the civil justice system, and the employer or the corporation is effectively creating its own law,” Wolfman says.

Conservatives say Roberts isn’t picking winners and losers. They see his goal as cajoling courts to play a more limited role in society, like that of an umpire at a baseball game — a favorite Roberts analogy.

“The chief justice, in particular, and the majority on the court are suspicious of using the courts as a way of addressing larger questions of social or economic policy,” says Jonathan Adler, a professor at Case Western Reserve University School of Law. “The chief does not want the court to be at the center of high-profile, high-consequence fights.”

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