The Roberts Court at 10

Roberts’s Consistent Votes to Close the Courthouse Doors | Chapter 4


Most of the “snapshots” that are part of CAC’s yearlong “Roberts at 10” project have focused on, or will focus on, substantive areas of the law. Our most recent “snapshot,” for example, focused on women’s rights, specifically reproductive rights and statutory protections against employment discrimination. But these and all other substantive rights and protections are undermined to the extent people cannot access the courts to vindicate them. This “snapshot” focuses on that issue: access to the courts.

The topic of access to the courts is a very broad one, encompassing many distinct areas of the law that can affect whether or how readily injured parties can bring claims in court. In this snapshot, we will look at four distinct areas of the law relevant to access to the courts and discuss the most significant cases in each area: (1) the doctrine of standing (that is, who may constitutionally bring a claim in court), (2) arbitration (whether individuals may bring their claims in court or must instead use private arbitration procedures), (3) pleading standards (what a plaintiff must allege at the outset of litigation to avoid having his or her case dismissed), and (4) lawsuits against the states (that is, when individuals can use the federal courts to challenge unconstitutional state action). Cases in all of these areas regularly come before the Supreme Court. Indeed, the Court is scheduled to decide a potentially significant case in the final category this Term. In that case (Armstrong v. Exceptional Child Center, Inc.), the Court has been asked to decide whether plaintiffs who assert that they have been harmed by a state law —specifically, health care providers who allege that they are not receiving adequate payments from Medicaid because of a state law—can ask a federal court to stop state officials from enforcing that state law because it conflicts with federal law. The ramifications of the Court’s decision in Armstrong could be significant not only for individuals seeking their day in court to redress all manner of unlawful state action, but also for the effective operation of the nation’s health care system.

Access to the courts is one area in which the story of the Roberts Court is largely, but not entirely, negative. Although most of the decisions of the Roberts Court in this area have limited access to the courts, there have been a few that have not, including most significantly the Court’s 2007 decision, Massachusetts v. EPA, holding that Massachusetts could sue the Environmental Protection Agency to challenge its failure to regulate greenhouse gas emissions under the Clean Air Act. But even though the record of the Roberts Court may be mixed on access to the courts, the record of John Roberts is not. He dissented in that 2007 case and in every other significant case during his tenure as Chief Justice in which the Court has refused to limit access to the courts, and he has always been in the majority when it has decided to limit such access. In casting these votes to limit access to the courts, Roberts has repeatedly disregarded not only the Framers’ vision of a robust judiciary that would serve to protect people from unlawful action by the other branches of government, but also Supreme Court precedent repeatedly affirming that access to the courts is, as Chief Justice Marshall put it, critical to the “very essence of civil liberty.”

As disturbing as Chief Justice Roberts’s decisions in these cases are, they are not terribly surprising. Unlike some areas of the law in which Roberts’s pre-confirmation statements seem to conflict with his post-confirmation votes and opinions, there’s little inconsistency between his pre-confirmation statements and his post-confirmation votes in this area. Indeed, prior to his confirmation, Roberts wrote an article defending a divided Supreme Court decision that denied standing to environmental organizations, and he said nothing at his confirmation hearing to assuage concerns that he would vote to limit access to the courts. Rather, at his hearing, he repeatedly emphasized that the role of the courts should be limited, and that the doctrine of standing is critical to enforcing that limited role. During Roberts’s first decade on the Court, it has become very clear just how strongly he feels about access to the court issues. Interestingly, although Roberts has rarely written majority opinions in these areas, he has repeatedly written passionate dissents in cases in which he was in the minority, going so far as to describe the majority’s opinion in one case as “achingly wrong.”

In short, although the category of access to the courts is a broad one, encompassing many distinct areas of law, Chief Justice Roberts’s votes and opinions across all of them reflect the strong view that the courts are often the wrong place to seek relief for a broad array of injuries.


More from Access to Justice

Access to Justice
February 20, 2024

RELEASE: Court Grapples Once Again with Federal Arbitration Act’s Exemption for Transportation Workers

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Bissonnette v....
By: Miriam Becker-Cohen
Access to Justice
February 19, 2024

Bakery Drivers Head to High Court Searching for Arbitration Exit

Bloomberg Law
Industry test would add fights on transportation firm meaning With circuits split, high court to...
By: Miriam Becker-Cohen, Jennifer Bennett
Access to Justice
January 31, 2024

The 5th Circuit Says Criminalizing Journalism Is Not Obviously Unconstitutional: The Appeals Court Dismissed a Civil Rights Lawsuit by a Laredo Gadfly Who Was Arrested for Asking Questions

Five years ago, the Harris County, Texas, Institute of Forensic Sciences sent me reports on...
Access to Justice
January 30, 2024

She Was Arrested for Her Journalism. A Federal Court Says She Can’t Sue.

Priscilla Villarreal, also known as “Lagordiloca,” has sparked a debate about free speech and who,...
Access to Justice
January 24, 2024

‘That’s Wrong for Several Reasons’: 7 Judges Dissent in This Divisive Case
“If any principle of constitutional law ought to unite all of us as Americans, it’s...
Access to Justice
U.S. Court of Appeals for the Sixth Circuit

Merck v. Walmart

In Merck v. Walmart, the Sixth Circuit is considering whether employees and job applicants deprived of their right to notice and an opportunity to be heard before being subjected to an adverse action on the...