On June 20, 2011, the United States Supreme Court took another sledgehammer to the right to a jury trial guaranteed by the 7th Amendment to the United States Constitution. Maybe sledgehammer is too strong of an image, because in reality, the Court simply pretended again that the right does not exist.
You might remember that about a month ago, the Court blessed unilaterally imposed arbitration clauses in consumer transactions, clauses that require disputes to be decided by a private arbitrator instead of a jury, and which prohibit class actions. In the newer case of Wal-Mart v. Dukes, the Court decertified a class of 1.5 million women seeking redress for alleged discrimination in employment because it, the Court, wasn’t “convinced” that there were common questions that could be decided on a class wide basis.
Most of the media attention has focused on whether this decision is a blow to women’s rights. It is, but no more so than to everybody else’s. Consistent with a number of decisions the Supreme Court has rendered, Wal-Mart has simply made it harder to vindicate the rights of people who have been injured similarly and on a massive scale. It has done this by vesting in a judge the power to decide the merits of a case at a very early stage of litigation, without even the procedural protections imposed by rules governing summary judgment. As most federal judges have been appointed by conservative and business-friendly Presidents over the past 25 years, this does not bode well for those with the least status and power in our society, the ones who typically benefit from class actions.
Here is how the Supreme Court accomplished its objective. In Wal-Mart, a Federal District Court had certified a class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Rule 23 provides, in short, that a plaintiff may bring a class action on behalf of others who are similarly-situated so long as the prerequisites contained in the Rule are met. This means there must be a large number of potential class members, the plaintiffs’ claims must be typical of the class he or she seeks to represent, common questions of law or fact exist and the named plaintiffs are adequate representative of the class. In addition, common questions must predominate and the class action must be a superior method of deciding the case in comparison to having multiple trials in multiple courtrooms. The lower court in Wal-Mart found that all of these requirements were met.
Forty years ago, the Supreme Court held in Eisen v. Carlisle & Jacqueline that, when considering the elements of Rule 23, a court has no authority to decide the merits of a case. Rather, Eisen held that the only issue is whether prerequisites of Rule 23 are met. In the past number of years, this concept has been eroded to the point that the merits can be considered in so far as they bear on Rule 23’s requirements. Any doubt that lingered about this appears to have been extinguished by Wal-Mart. Writing for the majority in Wal-Mart, Justice Scalia quite simply referred to Eisen in a footnote, stating for the first time in the decision’s history that the decision never meant what lawyers have been citing it for in the past half-century and reinforcing the new doctrine requiring a court to not only consider, but more or less decide, the merits when faced with the issue of class certification. Rendering an utterly contrary interpretation of established precedent, Justice Scalia then discussed his view of the evidence in Wal-Mart and said the majority wasn’t “convinced” that common questions existed and therefore concluded that a class should not have been certified.
Thus, in one fell swoop, by acting as a jury and deciding what evidence it believed, the Supreme Court killed a case in which 1.5 million women sought redress for discrimination in employment at Wal-Mart. But consideration of the evidence in the American legal system is not for a judge when a plaintiff is entitled to and demands a jury trial. Rule 23 is a procedural rule (at least I think it is, since it is one of the Federal Rules of Civil Procedure) and, as Eisen taught, had nothing to do with convincing a court of the meaning of evidence in regard to the substantive merits of a claim. The merits of a claim are for the jury to decide. In other words, at trial, the plaintiffs would put on the evidence they believed proved their case on a class-wide basis, and it would be up to the jury to decide whether it believed the claims had, in fact, been proved. Having a court make this decision in the context of deciding class certification gives the power of deciding a case to the judge and, as such, divests the plaintiffs of their right to a jury trial, a right that is guaranteed by the Seventh Amendment.
Wal-Mart v. Dukes is another radical decision by a Supreme Court that consistently departs from well-settled legal precedent in order to further its agenda, an agenda which I’m starting to think is sent to the Court weekly by the U.S. Chamber of Commerce. What’s worse is that most people won’t realize the impact of this decision until they suffer from some corporate wrong and have no ability to seek redress for their damages. On top of this, what strikes me with profound irony is the memory of George W. Bush repeatedly stating that he wanted judges who would strictly construe the Constitution, not interpret it. This Supreme Court, packed with Justices from Bush and his father, has been construing the Constitution as having no Seventh Amendment right to a jury trial. It is so intellectually dishonest and, to say the least, infuriating.