9

MAKING RIGHTS REAL: ACCESS TO JUSTICE

Nearly fifty thousand fans held their breath as St. Louis Cardinals center fielder Jon Jay hit a hard ground ball toward second base. Game 3 of the 2013 World Series was tied 4–4 in the bottom of the ninth inning, with one out and Cardinals runners on second and third base. The series was tied 1–1. It was the sort of game Little League players everywhere dreamed of.

Boston Red Sox second baseman Dustin Pedroia made a terrific stop and threw home to catcher Jarrod Saltalamacchia, who tagged out Yadier Molina as he slid home from third. Two outs. Saltalamacchia then looked up and saw Allen Craig barreling toward third. Saltalamacchia threw to diving Red Sox third baseman Will Middlebrooks but missed. As the ball rolled down the left field foul line, Craig raced for home plate. Middlebrooks was still on the ground, recovering from his dive, and his legs tangled with Craig’s. After stumbling briefly, Craig ran toward home. A throw from left fielder Daniel Nava arrived moments ahead of Craig, whom Saltalamacchia tagged out. Three outs. Extra innings. Or was it?

It was not. Citing a Major League Baseball rule governing “obstruction,” which occurs when a fielder not in the process of fielding the ball “impedes the progress of any runner,” third-base umpire Jim Joyce awarded Craig the game-winning run.1

Joyce later claimed the call was an easy one: “Unfortunately for Middlebrooks, he was right there, and there was contact. [Craig] could not advance to home plate naturally.”2 Whether or not Joyce made the correct call—an issue commentators hotly disputed—he was wrong on one point: the call was anything but simple. It involved a complex judgment about the counterfactual question of whether Craig would have scored if not for the obstruction. Unsurprisingly, Joyce’s ruling triggered familiar debates over the role umpires play in baseball. In the view of some critics, it seems unsporting and unfair for umpires to make these sorts of judgment calls, transforming games from a clash of athletes into a lottery wheel of subjective and unpredictable technicalities.

In 2005, at his confirmation hearings, John G. Roberts Jr. tapped into that sentiment to frame a judicial philosophy: “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” Like the best and most modest umpires, Roberts promised, he’d apply the law fairly. “I will remember that it’s my job to call balls and strikes,” he explained, “and not to pitch or bat.”3

Senate Republicans swooned at Roberts’s all-American analogy. John Cornyn of Texas warmly responded, “You were quite eloquent in saying that you wanted to be an umpire.”4 Sam Brownback of Kansas agreed, describing as “very apt” the nominee’s point about “the courts and baseball.”5 The Senate seemed eager to confirm Roberts to preside over both the Supreme Court and Major League Baseball. These great institutions have competed for talent before: former President William H. Taft was passed over for the job of Commissioner of Baseball in 1920, before being confirmed as Chief Justice in 1921.6

The “Umpire Moment” of Roberts’s confirmation hearing looms large in many critical assessments of his Court.7 Typically, it is presented by the Chief’s detractors as his great vow of neutrality and then followed by a blistering charge of bias and betrayal. In the view of many commentators, the Roberts Court is pro-business and anti-consumer,8 hostile to civil rights claims,9 and unsympathetic to criminal defendants.10 These trends in the Court’s rulings, critics usually add, reflect an activist departure from the neutrality Roberts so earnestly promised. Vague suggestions of sinister motives occasionally lurk about the edges of these allegations, hints that this Court is influenced by sympathy for big business and disdain for the very rights and regulations it is charged with enforcing.

These critiques are only partly right. In its nearly decade-old existence, the Roberts Court has issued a string of opinions that, by and large, favor businesses over consumers, law enforcement officers over civil rights plaintiffs, and the government over criminal defendants. The “winners” and “losers” in these fields are not hard to discern; nobody has seriously suggested that civil rights plaintiffs are faring well these days. Although the Court may not have moved as quickly toward the right as some conservatives hoped after Roberts and Alito were confirmed, no one can deny that the trend is a significant one. Notably, the left-leaning justices have joined quite a few of these “conservative” rulings; on these issues, they don’t always lean terribly far to the left.11

The explanation for these trends, though, is not a story of “neutrality” versus “activism.” Rather, it is a tale that mixes competing beliefs about what the law requires with a fundamental disagreement about the role of courts and litigation in American life. In the mid-twentieth century, moved by a desire to protect groups it saw as powerless, the Court threw open courthouse doors and created new law to combat widespread inequalities and injustices.12 In stark contrast, the Roberts Court’s temperament reflects the deregulatory and cynical tenor of our age. Most of the justices look skeptically on the use of litigation to regulate big business, on the efficacy and value of civil rights lawsuits, and on efforts to deter police misconduct through court-enforced constitutional law. They also seem to doubt the legitimacy and social benefits of some of the regulations and constitutional rights that give rise to many of these suits. Whereas the midcentury Court saw itself as a protector of the powerless and was willing to vastly expand its authority to achieve its vision of justice, the Roberts Court is mostly uninterested in that role. Overall, it is far more sensitive to the substantial burdens of litigation than to the potential benefits of lawsuits.

As a result, this Court has sounded a general retreat, narrowing and shutting down many of the doctrines and procedural devices through which plaintiffs invoke the courts to vindicate their rights. In a series of important, low-profile rulings, it has dealt critical legal rules a death of a thousand cuts—leaving many of our rights intact but making them effectively impossible to enforce in any court. The consequence in many fields of law has been a sharp trend toward deregulation, leaving businesses and government freer to act without the checks and balances—and burdens and frustrations—of judicial oversight.

One of the defining features of the Roberts Court is thus its reimagining of the judicial role in far narrower terms. Whether damned or praised, this dawning era of an anti-court Court promises to forever reshape the role of the Judiciary in “establishing justice.”

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For all the criticism it has received, Roberts’s use of the umpire metaphor at his confirmation hearings was a stroke of public relations genius. Hitching his wagon to a beloved national pastime, Roberts connected with viewers and legislators alike at a gut level that abstract legal theory could never reach.

Baseball has played a revered role in life at the Court for several decades. Justice Potter Stewart, for example, used to keep a small TV set in his chambers so that he could carefully track the Cincinnati Reds. Aware of his boss’s priorities, a clerk sent a mid-argument note for Stewart into the courtroom during the 1973 Mets-Reds play-offs; it read, “Kranepool flies to right. [Vice President Spiro] Agnew resigns.”13 Justice Harry Blackmun shared Stewart’s love of the game. Inspired by a baseball antitrust case, Blackmun generated furious negotiations in the early 1970s by creating a selective list of eighty-eight players “that have sparked the diamond and its environs and that have provided tinder for recaptured thrills.” Wrangling over whom to include on Blackmun’s list produced more heat than did the legal reasoning in the case.14

That love of baseball persists. In 2013, after Justice Sotomayor presided over a reenactment of the argument in Blackmun’s case, the die-hard Yankees fan confided that she would have demanded Joe DiMaggio’s inclusion.15 This was no surprise: raised in the Bronx, Sotomayor won national fame in 1994 as “the judge who saved baseball” by breaking a strike.16 In 2009 she threw the first pitch at a Yankees–Red Sox game—and Yankees Manager Joe Girardi recalls saying, “We’ll be calling you next week with a contract.” (Sotomayor reportedly replied that she’d “stick to her day job.”17) Sotomayor’s passion is matched only by that of Justice Alito, who has reportedly transformed his desk at the Court into a shrine to the Philadelphia Phillies.18 Justice Breyer’s adoration of the sport, in turn, shone through when he peppered lawyers in a football antitrust case with detailed questions about the Red Sox. “I know baseball better,” he slyly explained.19

Thus, when Roberts described himself as an umpire, he did more than sound fair and modest. He talked the talk of a baseball-loving justice.

Yet the umpire metaphor—and Roberts’s claim that he would enforce rules, not make them—may have engendered unrealistic expectations. While judges and umpires both strive toward basic values of fairness and impartiality, we learn more about the two jobs by contrasting them than we do by noting their similarities.

On the one hand, umpires enjoy more discretion than meets the eye. For example, they decide when weather conditions are “unsuitable” for play and rule on whether a pitch was made with the “obvious intent to catch a batter off balance.” Not to mention, of course, the all-important strike zone, described by one umpire as “a living, breathing document.”20 In these ways, umpires must exercise judgment—though a kind of judgment that can (and should) operate without any favoritism for particular players or teams, and without a broader agenda for the rules of Major League Baseball or the role of umpires.

On the other hand, while umpires mostly enforce rules and make judgment calls on the margins, judges create constitutional law. As Judge Richard Posner writes, “No serious person thinks that the rules that judges in our system apply … are given to them the way the rules of baseball are given to umpires.”21 Rather, to a judge deciding a truly close case, “there are no balls or strikes until he calls them.… His activity is creation rather than discovery.” In recognizing rights to armed self-defense and freedom from warrantless GPS surveillance, for example, the Court forged new law.

Further, judges—unlike umpires—regularly disagree over what the rule for a particular case should be and what principles should determine those rules. That is the very nature of constitutional interpretation. These disputes are important because judges wield a tool denied to umpires: invalidation. If judges deem a law unconstitutional, perhaps because it is “unreasonable” or “shocks the conscience,” the law falls. While umpires fill minor gaps in the rules of baseball, judges enjoy the far greater power to fashion and refashion the basic terms of our legal system.22

This is increasingly true of the Court’s role in interpreting some of our most important commercial and anti-discrimination statutes. These laws often leave lots of room for judicial interpretation. In theory, if the courts get it wrong, Congress can pass a new law to correct their error. And in rare cases, this actually happens. Motivated by a call to arms from Justice Ginsburg, for example, Congress passed the Lilly Ledbetter Fair Pay Act in 2009 to reverse a five-to-four ruling by Alito that cut back on pay discrimination claims filed by women. Congress, however, rarely manages such course corrections these days. As Rick Hasen, a professor at the University of California, Irvine School of Law, showed in a study of cases from 2001 to 2012, “the number of Congressional overrides has fallen off a cliff.”23 Political dysfunction and partisanship, he notes, bear much of the blame. With respect to defining statutory law, then, the Court plays an increasingly prominent and unchallenged role.

This is not to say that every legal question requires some profound act of value-inflected judgment. The vast majority of cases, in fact, are too clear-cut to make it as far as the Supreme Court. In 2013, for example, 375,870 cases were filed in federal district courts; 56,475 appeals were lodged in the federal circuit courts; and 7,509 petitions for review of state and federal court rulings were submitted to the justices.24 Yet in its term from October 2012 to June 2013, the Court issued a mere 78 opinions, turning aside all other petitions. By well-established custom, it left to the lower courts cases that called for mere umpiring, granting only cases involving particularly important and divisive issues of federal law. As a result, nearly all the matters the Court considered defied easy resolution under settled principles of legal interpretation.

Many of the cases that the Court did agree to hear, moreover, mattered for reasons other than their legal bottom line. As Justice Kennedy has recognized, “By our opinions, we teach.”25 The lessons the justices offer affect how Americans give life to constitutional values. When Roberts warns against being ruled by “functionaries” and Kennedy affirms the “dignity” of same-sex marriage, they do more than call balls and strikes. They help us navigate the Constitution. They affect political debate, increase the salience of selected issues, and influence which ideas are taken seriously. They urge us to think hard about our current practices and fundamental beliefs.26 The justices know this. As Chief Justice Earl Warren wrote decades ago, “Our judges are not monks or scientists, but participants in the living stream of our national life.”27

Against this complex reality, comparing judges to umpires can convey the mistaken impression that judges do not make value-laden choices. In many cases that the Court agrees to review, the simple truth is that totally “neutral” positions do not exist. As Justice Kagan told the Senate Judiciary Committee during her confirmation hearing, “The metaphor might suggest to some people that law is a kind of robotic enterprise … that we just sort of stand there and, you know, we go ‘ball’ and ‘strike’ and everything is clear-cut and that there is no judgment in the process. And I do think that that is not right, and it is especially not right at the Supreme Court level, where the hardest cases go.”28

In other words, the Court is nothing like a computer, spitting out disinterested free speech and gun rights rulings based on an algorithm known only to the nine justices. Nor is it, as Jeffrey Toobin has rightly explained, “an honor society for smart people.”29 The Court is an institution of government, charged with creating law that matches the evolving experiences of a diverse nation with shared, timeless principles. “Correct” answers to privacy and equality cases aren’t hovering out in the ether, awaiting their discoverer. Instead, they are forged from precedent, principle, history, and the interactions of nine men and women.

It would therefore be strange for a justice to be “impartial” or “neutral” in the sense of being utterly open-minded on all legal issues. As Scalia observed in 2002, “It is virtually impossible to find a judge who does not have preconceptions about the law.”30 He added, “Indeed, proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

In that respect, Supreme Court justices inevitably have agendas: beliefs about what the law is, what it should be, and how to move it that way. These high politics of law are entirely appropriate. Breyer celebrates pragmatic rulings that make democracy work. The former prosecutors, Alito and Sotomayor, share deep interests in privacy and criminal justice, though they approach those fields with different sympathies. Scalia advances pointed views on nearly every subject, from speech to abortion to gun rights. Ginsburg carries the banner for women’s rights and exults in the mysteries of civil procedure, while Thomas recasts whole fields of law in originalist terms. Kennedy works hard to safeguard a particular vision of human liberty, and Roberts sets forth bold statements of principle in cases about racial equality. Kagan remains something of a question mark, though her plainspoken opinions reveal a strong commonsensical streak.

These agendas encompass beliefs about what the law should say and beliefs about the role of courts in getting the law to mean what it says. Often, those beliefs are intertwined. For example, constitutional rights, regulations that can be enforced in court by private plaintiffs, and procedures that make it easier to sue tend to give judges greater influence. When the justices are skeptical of the underlying rights, doubtful of litigation, or concerned about overly broad uses of judicial power, they might understandably deem it appropriate to alter the legal framework in favor of a lesser judicial role. In so doing, they achieve many goals at once in their decades-long struggle over the Court’s high politics.

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Perhaps the most common charge leveled against the Roberts Court is that it is pro-business.31 Assessing the Court’s rulings in a wide range of legal fields, many critics allege that the justices have displayed an unmistakable sympathy for “big business”—and a comparative disdain for regulation designed to protect fair markets. Articles with titles like “Supreme Court, Inc.” and “Business Reigns Supreme” now dot the journalistic landscape.32

There is some empirical support for this view. A study published in 2013 concluded that Roberts, Scalia, Kennedy, Thomas, and Alito are among the five most business-friendly justices since 1946, and that Alito and Roberts rank first and second, respectively.33 The same study noted that, since joining the Court, Alito and Roberts have pulled their right-leaning colleagues to more pro-business positions. As a result, it concluded, the Roberts Court has been friendlier to business than any Court since World War II. These results echoed a New York Times report from 2010, which found that “the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.”34

The business cases covered by these studies arose from many contexts. They involved antitrust statutes meant to prevent unlawful monopolies, securities rules aimed at ensuring market integrity, product liability doctrines, anti-discrimination statutes, intellectual property protections, and a battery of other laws. In sum, they touched on a broad panoply of the nation’s economic regulations. And across these varied domains, the studies found, this Court has shown a sustained sympathy for the interests of big businesses—at least as litigated against consumers, regulators, and smaller businesses.

The United States Chamber of Commerce is widely thought to have played a role in this development, a perception that it has occasionally encouraged.35 Carter Phillips, a leading business attorney, thus remarked in 2007 that “except for the Solicitor General representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the [Chamber].”36 Writing for SCOTUSblog in 2013, Adam Chandler confirmed that, from 2009 to 2012, the Chamber had filed more petitions asking the Court to hear a case than any other private entity (54) and had the second-highest success rate with its requests (32 percent).37

A heated battle over the Roberts Court’s true sympathies rages in the shadow of these studies.38 Some scholars dispute the categorization of particular decisions as “pro-business.” They observe that winning three minor cases can matter a lot less than winning a single major case, and they emphasize that the ultimate consequences of “wins” and “losses” at the Court often look very different from what the initial scorecard might suggest. Each side points to cases that seemed close but went the other way. One side insists that the Court is being activist; the other side insists that the Court is rightly reversing a lot of mistaken rulings. And hanging over all this wrangling is a dispute over whether “pro-business” rulings might actually be beneficial to groups like consumers, shareholders, and small business owners. That dispute, in turn, often reduces to a familiar back-and-forth over whether economic regulations are generally good or bad for the public.

These arguments can quickly get very messy, and it is virtually impossible to wade through them to arrive at an iron-clad conclusion about whether the Roberts Court is indeed “pro-business” in its interpretation of economic regulations. The path is blocked by subjective judgments about the nature and effects of the Court’s decisions, how “easy” certain cases were as a matter of law, and the relative importance of various rulings. Further, in many of these cases the Court addressed only a small part of broader regulatory schemes, control of which is ultimately reserved to Congress and federal agencies. As a consequence, the Court may be influenced by what it perceives to be signals from the other branches of government; at the very least, the effects and importance of its rulings can be understood only in relation to actions taken by those branches.

On a review of the available data and a close reading of the Roberts Court’s opinions, however, two conclusions stand up to scrutiny: this Court is unusually interested in business affairs, and a majority of its justices are receptive to legal arguments that tend toward deregulation. As Kagan explained to an audience at the Aspen Ideas Festival in 2013, “It’s not like the Chamber of Commerce appears in Court and you vote, I like the Chamber of Commerce or I don’t.… But I do think that in a number of cases with respect to a number of areas of law, there is a majority of the Court that has a set of legal views that provide some significant relief from both federal and state regulation to businesses.”39

Kagan did not mention any specific areas of law, but she may well have had in mind the arcane realm of procedure. However we evaluate the Court’s approach to the statutes and doctrines that govern our economy, its dramatic rewriting of the procedural rules that structure litigation is unmistakably favorable to big businesses.

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“When a chess player looks at the board,” Arthur Koestler once wrote, “he does not see a static mosaic, a ‘still life.’”40 Rather, he sees “a magnetic field of forces, charged with energy—as Faraday saw the stresses surrounding magnets and currents as curves in space; or as Van Gogh saw vortices in the skies of Provence.” Each piece radiates possibility. Every move ripples out, shuffling the deck of possible futures. This is why chess masters must possess a talent for grand strategy, which necessarily includes the ability to visualize an expanding field of uncertain events and chart a flexible path toward victory.

Now imagine a game of chess where, every other move, a player is entitled to move a piece and to modify the rules that govern any piece. He knows, or can guess, how that new rule will affect the ongoing game. Such is life at the Court. When the justices shape law, they form plans within plans.41

Some of the rules that attract the justices’ attention have nothing to do with rights to bear arms or get an abortion; instead, they control a litigant’s path through the justice system. One might think that someone who believes his rights have been violated can always go to court and obtain a remedy, but in practice that is only sometimes true. Lawyers must navigate a tangled web of procedural rules before they can reach the holy grail of damages for illegal conduct or an order preventing the conduct from recurring. The justices engage in some of their subtlest intrigues while shaping those rules.

Though procedural doctrines may seem obscure, they provide an essential means of balancing values like fairness, efficiency, and justice.42 By tinkering with procedure, the Court can discourage people from filing suits, make it both more essential and more difficult to afford a lawyer, and stack the deck in favor of defendants by constructing obstacles to the discovery of relevant evidence. Indeed, a single, well-aimed procedural bullet can knock down dozens of legal claims when all those claims turn on the same procedural rule. Because America relies heavily on private plaintiffs to enforce many of its economic regulations, the practical result of pro-defendant procedures is often a form of deregulation—a result congenial to many business interests.

The Roberts Court has displayed a keen interest in procedural rules, issuing a string of opinions that make it harder to bring and maintain many kinds of claims. Several of its most significant lines of cases have focused on limiting suits by consumers and employees. The result has been a substantial diminution in the role of courts as places in which to enforce statutory limits on corporate behavior. The underlying rights remain standing, but they have been deprived of most of the legal force they once accrued through the threat of litigation.

That project has found its purest expression in a devastating assault on class actions. The class action mechanism allows representative plaintiffs to bring suit on behalf of much larger groups whose members have all been injured in the same way. This kind of lawsuit is often essential when each person’s potential damages are so low that it would make no sense for anyone to file an individual case (or for any lawyer to get involved). Often, the availability of a class action determines whether a company alleged to have violated the law will ever be forced to defend the legality of its conduct in court.

For that reason, class actions have long played an important role in providing relief to those without the means or motive to combat corporate abuses by themselves. As New York University Law Professor Arthur Miller notes, they have also become part of a “satellite regulatory system.”43 By empowering private individuals, he explains, the class action “augments and sometimes serves as a substitute for the work of official government agencies that typically are under resourced, captured by the industries they are expected to regulate, or ossified by internal regulation.” In the 1990s, battles over asbestos and tobacco proved the power of class actions. Today, they remain valuable tools in the ongoing fight against discrimination, consumer fraud, deadly drugs and products, the creation of illegal monopolies, and efforts to cheat the financial markets. This is especially true when regulators aren’t up to the challenge.

But class actions also present the troubling possibility of different kinds of unfairness. Consumers with particularly strong claims may lose out when tossed into a massive class. The plaintiffs’ lawyers who control many class actions may seek to advantage themselves at the expense of class members. Defendants, faced with the threat of drawn-out, expensive class litigation, may feel compelled to settle even weak claims just to avoid the steep costs, unwanted disclosures, and inevitable risks associated with fighting a class. And the public, which supposedly benefits when big companies are deterred from engaging in wrongdoing, may end up suffering the consequences of a haphazard and wasteful method of ensuring that businesses play by the rules.

Faced with this difficult balance, the Roberts Court has come down squarely in favor of sharply limiting the circumstances under which plaintiffs can band together into classes. To the justices who are already skeptical of economic regulation in general, the potential benefits of class litigation seem thin when compared to its presumed burdens on lawful corporate activity. The Court has reflected that sentiment by issuing a string of opinions—all decided five-to-four and all authored by Scalia—that have the obvious purpose of destroying most consumer and employment class actions.

One of the most important of these cases is AT&T Mobility LLC v. Concepcion, which was filed by Liza and Vincent Concepcion against AT&T in 2006.44 AT&T had advertised that anyone who signed up for its services could get a free phone. Relying on this deal, the Concepcions paid $149.99 and got a free Nokia phone. But AT&T hadn’t mentioned that it was obliged by state law in California to charge $30.22 in sales taxes for this “free” phone. The Concepcions asserted that they hadn’t learned of this additional charge until after signing AT&T’s contract and alleged that this hidden fee had violated consumer protection laws.

The Concepcions filed a class action suit for false advertising and fraud. AT&T responded by invoking the fine print of the Concepcions’ contract, which said that all such disputes must be handled one by one and in private arbitration. Lower courts disagreed with AT&T, noting that California law prohibited any contract in which a consumer waived the right to proceed by class action—including contracts that waived the right to seek class arbitration. This policy reflected California’s belief that class actions are key to consumer protection, as well as its awareness that consumers rarely read the small print of contracts before signing away their rights. The Concepcions argued that the AT&T contract’s ban on class arbitration violated this rule of California law and that they were therefore free to bring a regular class action in federal court.

At oral argument, Scalia unabashedly favored the Concepcions. So it came as a surprise to many when he wrote an opinion ruling for AT&T. His opinion captured two related trends in how the Roberts Court has dramatically limited consumer litigation: hostility to class actions and strong support for private arbitration.

Even though Scalia is famously skeptical of efforts to interpret statutes by divining their purpose, he took an expansive view of the purpose of the Federal Arbitration Act (FAA) in Concepcion. The FAA dates to 1925 and tells courts to honor contracts that provide for private arbitration. But it also lets courts invalidate those agreements under general principles of contract law, much like California’s general ban on class action waivers. On its face, the California rule thus seemed to be compatible with the FAA. The Concepcions argued that there was no need to deem it preempted—in other words, overridden—by virtue of a conflict with the purposes of federal law.

Scalia disagreed. His opinion interpreted the FAA as a shield against any state rule that might discourage companies from requiring arbitration of claims arising from consumer contracts. To Scalia, the whole point of private arbitration as a streamlined alternative to public litigation would be undermined if companies had to allow burdensome class procedures within it. Driving home the point, his opinion dwelled on many potential disadvantages of class actions: “The switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” The fact that California’s rule didn’t target arbitration as such made no difference to Scalia. On his reading of the FAA, California’s policy conflicted with the federal law because it had the effect of making mandatory arbitration clauses less attractive to businesses.

Although Scalia pushed it further than any other recent case, Concepcion’s pro-arbitration tenor would have seemed unpredictable only to an observer attaching too much significance to his remarks at oral argument. The Roberts Court has issued a string of rulings that make it virtually impossible to escape arbitration agreements.45 Taking the cue, companies and employers are rapidly adding arbitration clauses to many of the contracts we sign without thinking about it, clauses just like the one AT&T used to boot the Concepcions out of court.

The result has been a rapid expansion of private arbitration as a parallel justice system that has supplanted a role once occupied almost entirely by state and federal courts.46 With each passing day, public courts more permanently disappear as a real option for many Americans in their dealings with big business—when we seek employment, buy phones, sign up for nursing homes, or open bank accounts. Arbitration can be fair and efficient, but it can also strongly favor business. The proceedings are secret, arbitrators aren’t always bound by the law, there is no jury or right to appeal, and companies sometimes pick their own arbitration firms. Documents that could force changes in corporate governance if disclosed in open court are kept in the dark. Plaintiffs can also have a harder time finding lawyers, as the potential recovery in private arbitration is often much lower than in courts. Not surprisingly, then, the merits of arbitration as a replacement for courts remains disputed. But the Roberts Court has declined to wade into that debate and has repeatedly instructed courts to bow out in the face of arbitration agreements (except in rare cases of manifest injustice in arbitration proceedings).

In its undisguised hostility to class procedures and with its emphatic vote of confidence for private arbitration, Concepcion was a pro-business opinion. It is big business, after all, that stands to benefit most substantially from a decline of class litigation and that firmly favors arbitration agreements. As Harvard Law Professor Mark Tushnet writes, rulings like Concepcion “don’t actually deny that the plaintiffs were screwed by big business. They simply make it impossible for plaintiffs to bring cases that would impose liability on businesses for their violations of the law.”47 Nor can it be said that Concepcion was compelled by precedent. At best, it was a difficult case; in the view of many scholars, it reflected a policy-driven desire to deregulate by reshaping the ground rules of civil litigation.

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Concepcion is just the tip of an ever-growing iceberg of procedural rulings that deregulate by functionally immunizing big businesses from suit, even in the face of clear wrongdoing. Another case—American Express v. Italian Colors Restaurant—further illustrates the general trend.48

In the early 2000s, a restaurant owner claimed that American Express had illegally abused its monopoly position in the market to compel rates 30 percent higher than those charged by competing cards, thus harming consumers and small businesses. American Express, however, had allegedly used that same monopoly power to force the restaurant owner to sign a contract mandating arbitration and waiving many procedural rights, including class action. The restaurant couldn’t afford to sue American Express by itself, since it would cost several million dollars to hire an economics expert capable of proving a violation of the antitrust laws, and the potential damages from victory amounted to less than $40,000. As a result, even if it were true that American Express had illegally used its monopoly power to impose higher rates, it could never be held accountable through private litigation, despite the fact that federal law recognized a private right to sue for antitrust violations in circumstances just like this one.

Before Italian Colors, the Court had created an exception to its pro-arbitration doctrine when necessary to allow “effective vindication” of legal rights. If ever a case seemed to call for application of that rule, this was it. Joined by the other right-leaning justices, though, Scalia ruled for American Express. His opinion marginalized the effective vindication precedents, reiterated the familiar reasons to disapprove of class actions, and said virtually nothing about the vast gap it created in antitrust regulation. As in Concepcion, Scalia pushed hard on existing law to reach this result. In an outraged and largely unanswered dissent, Kagan warned that “the monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.” She added, “And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”

Like Concepcion, Italian Colors safeguarded big businesses from private suits that could enforce economic regulations designed to protect consumers and small businesses. Although Scalia insisted that the FAA required this result, Kagan made a powerful point in response: “What the FAA prefers to litigation is arbitration, not de facto immunity.” Italian Colors laid bare a profound difference of opinion concerning the role of litigation—and thus the role of courts—in affording a means by which to hold big businesses to account when they may have acted illegally.

On occasion, the Roberts Court has taken a more direct approach to knocking out class actions. In 2011, for instance, it broke apart a proposed class action in which 1.5 million women argued that Wal-Mart had engaged in systematic pay discrimination.49 The plaintiffs explained that Wal-Mart had violated their rights by maintaining a corporate culture that implicitly encouraged and accepted discriminatory decisions by store managers throughout the country. Although the Court unanimously refused to certify the case as a class action, Scalia wrote a separate opinion for the five right-leaning justices in which he made it much harder for plaintiffs ever to show that they have enough in common to form a class. Specifically, he took aim at circumstances in which an institution like a school, prison, or employer has one (legal) practice on the books and another (illegal) practice on the ground. In those situations, he warned, plaintiffs need to demonstrate that they have suffered from more than just abuses of mid-level discretion; rather, they must prove that they have suffered violations arising from a common source. Scalia’s opinion has already been invoked by corporations across the country to decertify classes challenging practices that involved even trace elements of managerial discretion. When that happens, lawsuits often come to a crashing halt, leaving companies largely free of litigation-based enforcement of regulation.50

To the extent that its high politics align with the interests of big business, the Roberts Court reveals this impulse principally through its procedural decisions. Arbitration and class actions are only part of this story, which also encompasses rulings on the standard for dismissing cases as “implausible” before parties are allowed to engage in discovery,51 limits on the liability of companies for actions outside the United States,52 and restrictions on where companies can be sued for allegedly unlawful conduct.53

Because they operate across many areas of law simultaneously—affecting private enforcement of nearly every type of economic regulation—these procedural rulings are enormously powerful. A crude favoritism for big business, though, is not what drives them. In most cases, they flow from a desire to ensure a particular view of fairness in litigation, limit the role of courts, and reduce the role of lawsuits as a regulatory tool. The majority seems especially skeptical of the whole concept of representative litigation, in which plaintiffs sue on behalf of larger groups, and clearly favors the traditional model of one-on-one litigation between two parties—even when disparities of bargaining power or resources make a one-on-one alignment infeasible for most potential plaintiffs. Fused to its respect for formal contracts and its warm attitude toward cheaper, informal modes of dispute resolution, this hostility to facilitating representative litigation has also shaped the Court’s arbitration rulings in cases like Concepcion and Italian Colors.

The justices who render these rulings do not think of themselves as intentionally favoring big business over “the little guy”; to the contrary, they see themselves as creating reasonable rules that are likely to benefit both big business and the rest of society. Still, it cannot be denied that such procedural decisions reflect a deregulatory mood that makes it easy for the right-leaning majority to discount the potential burden of their rulings on the broader American public.

The left-leaning justices, in contrast, see victims of corporate wrongdoing denied any remedy, possessed of a right without any way to enforce it. They see an invitation to further corporate abuses in the absence of an enforcement mechanism for vital regulations. And they see a majority aggressively creating new law to keep people out of court who, for decades, would unquestionably have made it in.

This deep split in the Roberts Court, rooted in incompatible views of economic regulation and access to judicial justice, is fast transforming American legal practice. As a private system of arbitration becomes dominant and class actions face a mortal threat, the role of courts as places in which to hold businesses accountable for violating the law has diminished. This trend, however, is not at all unique to the context of big business. Elsewhere in the law, the Roberts Court is determinedly proving that it is, in effect, an anti-court Court.

*   *   *

In the recorded annals of human experience, no city has generated more controversy than Jerusalem. Distilling its story, Benjamin Disraeli once remarked that “the view of Jerusalem is the history of the world; it is more, it is the history of earth and of heaven.”54 One small part of that tale came before the Court in 2011, and in a somewhat unusual turn, Roberts took the opportunity to offer a vivid defense of the role courts play in proclaiming the law.55

In 2002, Congress had ordained that, upon request, the Secretary of State must list Israel as the “place of birth” on the passports of Americans born in Jerusalem. The Executive, however, refused all such requests, citing its power to conduct foreign affairs and its policy of not taking a position on Jerusalem’s political status. Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002; when the Secretary of State refused to issue a passport listing Israel as his place of birth, Zivotofsky’s mother filed suit. She argued that the Secretary had illegally ignored Congress. A lower court, however, dismissed her suit on the ground that it was powerless to decide this “political question.”56 In its view, Jerusalem’s status was entrusted by the Constitution to the political branches. Congress and the President had to sort it out without judicial intervention.

Writing for a near-unanimous Court, Roberts rejected this limit on judicial power. His opinion drew an important distinction: it is one thing for the Judiciary itself to decide that Congress infringed on the Executive by imposing this passport rule but quite another for the Judiciary to let the President make that decision unilaterally. While the Constitution entrusts the President with foreign affairs powers, Roberts wrote, “there is, of course, no exclusive commitment to the Executive of the power to determine the constitutionality of a statute.” Invoking a famous case from 1803, Roberts explained that “at least since Marbury v. Madison, we have recognized that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”

This ringing proclamation of judicial power to state the law, though powerful, stands in poignant tension with this Court’s approach to most civil rights lawsuits. Since 2005, the Roberts Court has issued a string of decisions that make it much harder to hold the government accountable in court when it violates the Constitution. As in the business context, the Court has focused on technical rules, deploying legal stealth missiles that leave rights standing while destroying their efficacy.

One of the Court’s subtlest tools is the removal of remedies for violations of civil rights.57 Remedies, of course, are of ancient lineage in our tradition. When he wrote Marbury in 1803, Chief Justice John Marshall did more than just declare that it is the Judiciary’s role “to say what the law is.”58 He added that the laws are expected to furnish a “remedy for the violation of a vested legal right.” As Marshall realized, rights mean little if their violation goes uncorrected and unpunished.

The judicial role in interpreting and implementing the Constitution is therefore married to a role in crafting remedial schemes. In most civil rights suits, the Court looks to 42 U.S.C. § 1983, a federal statute that authorizes courts to award money damages and injunctive relief to victims of misconduct by state or local officials. By offering remedies, the law compensates victims of abuse, aims to deter illegal behavior, and sends a message to the public and politicians that rights must be honored. When the law denies a remedy for even persistent and egregious violations, it risks sending the startling and dangerous signal that violating people’s rights isn’t all that big a deal.

A majority of the Roberts Court, while recognizing these concerns, has nonetheless made it significantly harder to prevail on civil rights claims, even when the plaintiff undoubtedly suffered a violation of her rights. In that undertaking, it has continued and accelerated a decades-old trend. The Court has been moved mainly by a conviction that courts should be wary of second-guessing most ground-level government decisions. Its opinions suggest a general willingness to trust the other branches of government, the states, and the political process to keep public officials in line most of the time. Emphasizing that it would be absurd to expect all police officers to follow every intricate detail of judge-made constitutional law, the Court has issued decisions affording the police shields from suit when they did not act with clear malevolence or gross incompetence. The Court has also shown skepticism that civil rights suits deter enough misconduct to justify the steep financial burden that they impose on municipalities (and, thus, on taxpayers). In general, a majority of the Roberts Court seems to doubt the value and legitimacy of many civil rights suits and favors legal rules that keep most of them out of court. The result is a shrinking judicial role in enforcing the Constitution and protecting our liberties.

Connick v. Thompson exemplifies the point.59 On January 17, 1985, John Thompson was charged with murder. Because of his conviction in an earlier armed robbery trial, Thompson decided not to testify at his murder trial, since any testimony would open the door to evidence of his robbery conviction. This was no accident: the prosecutors had tried Thompson for the robbery first in order to disable him at the murder trial. The prosecutors then successfully sought death at the murder trial, arguing that only the ultimate penalty would suffice for someone serving a near-life sentence for robbery. Thompson was consigned to death row.

Mere weeks before Thompson’s scheduled execution date in 1999, his private investigator stumbled upon proof that prosecutors had concealed key evidence in the robbery trial. This material included an eyewitness identification that described a man who looked totally unlike Thompson, blood tests from the scene that didn’t match Thompson’s blood type, and a recorded conversation in which the key police informant sought a $15,000 reward from the victim’s family. Apprised of the new evidence, Louisiana courts stayed Thompson’s execution and vacated his convictions. It soon came to light that five different New Orleans prosecutors had played a role in keeping this terrible secret, even though the Constitution requires prosecutors to disclose evidence tending to prove a defendant’s innocence. The New Orleans District Attorney abandoned the armed robbery charge but retried Thompson for the 1985 murder. Freed of the robbery conviction, Thompson testified in his own defense and presented previously concealed evidence. A jury acquitted him after less than thirty-five minutes of deliberation.

Thompson then sued Harry Connick Sr., the New Orleans District Attorney (and the famous singer’s father), for failing to train his prosecutors in their legal duties. That failure, he contended, could predictably result in tragedies like his own. A jury of his peers agreed and awarded Thompson $14 million for violations of his civil rights: $1 million for each year unjustly spent in jail.

In 2011, over a potent dissent by Ginsburg and her left-leaning colleagues, the Court stripped Thompson of all damages. Writing for the majority, Justice Thomas argued that Connick had been entitled to assume that his prosecutors were trained in law school, so Thompson couldn’t show that Connick had acted with the requisite “deliberate indifference” to his rights. Along the way, Thomas articulated a legal standard that will make it nearly impossible to hold municipalities liable for failing to train prosecutors. That aspect of his ruling lined up with other cases that render prosecutorial misconduct in all of its troubling manifestations almost completely immune from judicial supervision.60

Ultimately, the Roberts Court listened to Thompson’s tale and heard a story about the need to shield cities from lawsuits. In many respects, this is characteristic of how the Court treats civil rights cases. The majority sympathized with Connick and officials like him, showing comparatively little concern for Thompson or other potential victims. It warned about judicial overreaching, plainly worried that allowing liability for “failure to train” could result in sweeping judicial mandates of required staff programming. Federal law, Thomas emphasized, “does not provide plaintiffs or courts carte blanche to micromanage local governments throughout the United States.” In another common Roberts Court move, Thomas pointed to other institutions and explained that they were adequately equipped to ensure that law enforcement complied with the Constitution. Specifically, he argued that law schools and legal ethics exams afford enough legal training to allow head prosecutors to trust their staffs without a judicial overseer.

In a wide-ranging concurrence, Scalia argued that there may have been no constitutional violation at all in Connick. As he saw the matter, the legal rules governing prosecutorial disclosure duties were still unsettled on important issues in the mid-1980s. Indeed, he added, the Court still has not required prosecutors to “respect a right to untested evidence,” such as the blood evidence that exculpated Thompson.

This separate writing reflected two more standard Roberts Court themes. First, it hinted that ongoing uncertainty in the law made it unfair to hold police and prosecutors liable.61 This concern has dominated the Court’s recent civil rights rulings, many of which hold that only violations of crystal-clear law are actionable—a high bar to meet, given that constitutional law is often open to at least some dispute.62 Moreover, in these rulings conferring immunity on the police, the Roberts Court rarely takes the opportunity to clarify the relevant constitutional law—thus leaving key questions open and ensuring that future abuses of the same sort will also result in police immunity.63 Second, Scalia’s concurrence suggested his narrow view of the underlying civil right to disclosure of potentially exculpatory evidence. Many of the surviving rights involving the police and prosecutors are products of a far more liberal era, in the 1960s and ’70s, and while this Court has generally declined to erase them, it has taken many opportunities to limit them. In doing so, the Court has hinted that those rights lack firm constitutional support and give judges too much power to intrude upon affairs properly reserved to other parts of government. In Connick, Scalia made clear that he would look with great skepticism on arguments for expanded disclosure duties.

Ultimately, fearful that a ruling for Thompson would launch an endless cascade of frivolous and valueless suits, each a drain on public funds and each a request for judges to dominate local government, the Court preferred to shut its door.

Dissenting, Ginsburg blasted Thomas’s factual argument. In the decade before Thompson’s trial, she pointed out, Louisiana courts had reversed four convictions from Connick’s office for failure to turn over evidence. That sent a clear signal about the quality of his prosecutors’ training and put Connick on unmistakable notice about the pressing threat of yet another violation if he failed to act. Ginsburg added that, as the head of an office staffed mostly by young prosecutors, many of whom had attended law schools where criminal procedure was not even a required course, Connick was directly responsible for ensuring that his staff received adequate training. Marking his failure to do so, Ginsburg concluded that Connick “had created a tinderbox in Orleans Parish in which [constitutional] violations were nigh inevitable.” In that respect, she maintained, his “deliberate indifference” to the civil rights of people like Thompson could not have been more apparent. As Ginsburg pictured it, Connick arose not from the deliberate bad acts of a few evil prosecutors, but rather from a culture of disregard for civil rights and disinterest in adequate training that imperiled every man, woman, and child in New Orleans.64

Critics on the left echoed Ginsburg’s outrage. Writing in Slate, Dahlia Lithwick described Thomas’s opinion as “a master class in human apathy.”65 It displays, she wrote, absolutely no sympathy for Thompson. The opinion’s rhetoric and reasoning are indeed spare and pitiless: Thomas glosses over Thompson’s near-death encounter and highlights the tough circumstances Connick confronted. From a Court that votes each year to remove limits on capital punishment, there is no twinge of concern about error. Scalia once defended the death penalty by saying that if an innocent were ever executed, his “name would be shouted from the rooftops.”66 Yet faced with a case where the plaintiff was saved by sheer good luck, his critics noted, Scalia wrote separately only to suggest that Thompson’s rights might not have been violated by the prosecutors’ lies.

Ginsburg’s dissent rested on foundations very different from Thomas’s majority opinion. From its point of view, the majority had abdicated the judicial duty to remedy and prevent the sorts of abuses that may someday cost an innocent man his life. The courts cannot closely govern prosecutors, of course, but they can use remedies to compensate victims and send a message when our public advocates break the law so egregiously. After all, high-profile judicial rebukes can deter misconduct and trigger a political debate that ripples out and ultimately reshapes official policy. Especially in cities with strained budgets, like New Orleans, big damages awards can also generate immense pressure on law enforcement to follow constitutional rules. By punishing civil rights violations, courts can thus trigger other safeguards against abuse.67

Connick, however, is part of a clear arc in the Roberts Court’s jurisprudence toward conferring near-total immunity on prosecutors and police. Skeptical of calls to review their conduct in civil rights suits, the Court has fortified older barriers to judicial remedy and erected several of its own. The result is a different and lesser judicial role in providing victims of public abuse with a forum in which to obtain relief and recognition—and a great vote of confidence in public officials to abide by the law even without the threat of liability under federal civil rights statutes. Ginsburg’s dissent in Connick lodged a powerful protest. To the majority, though, this result is justified by its fear of judges riding roughshod over local governments, its doubt that civil rights litigation does all that much good, and, on occasion, its skeptical view of the very constitutional rights that give rise to civil rights suits in the first place.

*   *   *

Sirens blaring, police cars appear from everywhere in a darkened alleyway. The night splits into shards of flashing red and blue light. Panicked, a hooded suspect breaks into a mad dash and leaps a fence with astonishing agility. Impressive, but futile: two officers, guns drawn and eyes bloodshot with anticipation, knock the suspect to the ground and brutally cuff him. Desperate for answers, they get right to business: Tell us where you hid the body! When the suspect spits out a snarky retort, the cops knock his head into the ground and ask how he’d manage with a pair of broken legs. Terrified, he visibly deflates and confesses to a gruesome murder. Case closed, right? No: since it’s only twenty-two minutes into the fast-paced episode of Law & Order or NYPD Blue, we know there’s a catch.

On these facts, the twist is clear: the officers never read the suspect his rights as required by Miranda v. Arizona.68 They never told him he had the right to remain silent, that anything he said could and would be used against him in a court of law, that he had the right to an attorney, and that he had the right to have the state pay for an appointed attorney if he couldn’t afford one. Even if they had Mirandized him, their use of force to compel a confession constituted a distinct violation of the suspect’s rights. As a result, the confession isn’t admissible as evidence. After a dramatic showdown in court we can expect another twenty minutes of struggle to find damning proof.

The threat that evidence will be suppressed plays a critical role in creating captivating TV drama. On many police procedurals, though the cops are (mostly) well-intentioned, their hatred of bad guys, the thrill of the chase, and a passion for justice often cloud their good judgment. So they skate on thin ice, bending the rules to ransack an apartment or rough up a suspect under interrogation. The main limit on the officers’ zeal, it seems, is fear that the evidence they collect may be tossed out of court. That’s the big gun to their head, giving them pause and forcing them to comply with maddening rules. In the heat of the moment, it’s often easy for us, as viewers, to sympathize with their frustration—though we might feel differently if we were one of the many suspects they mistakenly suspected and roughed up before catching the real wrongdoer.

This makes for great television—not just suppression of evidence but the many other rules that create dramatic courtroom clashes. Much of this law is based on the Fourth Amendment, which protects against unreasonable searches and seizures, and the Fifth Amendment, which guards against coerced self-incrimination. If those rules faded away, writers for shows like The Closer would lose one of their best plot devices. But that would not be the only price. In this field, art imitates life. The officers who patrol our streets are moved to obey the law, at least in part, by stiff court-enforced penalties for failure to do so. If courts were to abandon that role, police might act differently when it matters most.

That, however, is where the Roberts Court is heading.69 In recent years, it has continued a long project of narrowing constitutional limits on police and prosecutors. On its watch, the law of criminal procedure has grown ever more deferential to law enforcement—more willing to accept claims that, if officers violated the law, they did so in good faith and therefore the evidence they turned up should not be suppressed. This trend reflects the same skepticism of using constitutional law to regulate police that has animated this Court’s approach to civil rights issues. The Roberts Court views the costs as too high, the benefits as too doubtful, and the legitimacy of such judicial supervision as questionable. Better, in its view, to leave these matters to politics and police professionalism. In that respect, this Court’s criminal procedure rulings are part of its broader deregulatory agenda—though here, as in the civil rights context, it is deregulating the other branches of government and the states.

In Herring v. United States, a 2009 decision, the justices’ profound differences of opinion about when to suppress evidence came to a head.70 The facts are straightforward: Bennie Herring was well known to law enforcement in Coffee County, Alabama. So when Herring stopped at the Sheriff’s Department to retrieve something from his impounded truck, Investigator Mark Anderson asked the County Clerk to check for any outstanding arrest warrants. None turned up, so Anderson had the clerk get in touch with her counterpart in neighboring Dale County. When that clerk reported an active warrant, Anderson placed Herring under arrest. While searching Herring after arresting him, Anderson found drugs in Herring’s pocket and an unlawful gun in his truck.

The case took a complicated turn, though, when it was discovered that the Dale County Clerk had been wrong. There was no active warrant; it had been recalled five months earlier, but through an oversight it had never been removed from the County database. Faced with federal criminal charges, Herring argued that the drugs and gun had to be suppressed because his arrest and the subsequent search were obviously illegal.

Suppression is a dramatic but controversial remedy.71 Nothing in the Fourth Amendment’s text expressly requires suppression of unlawfully obtained evidence; the Amendment is silent on remedies for illegal searches and seizures. Judges fashioned the suppression remedy in the mid-twentieth century to give the Fourth Amendment force—to make its rights real.72 In theory, we might instead rely on civil rights actions against officers, criminal prosecutions, or police department discipline to punish and deter misconduct. And we do rely on all of these tools, to a greater or lesser extent. Suppression, however, remains the gold standard, a double-edged sword that cuts us but that we still wield because it gives life to the Fourth Amendment’s limits on police conduct. As Justice William Brennan argued in 1984, we must sometimes allow suspects to go free because suppressing illegally obtained evidence “is the ‘price’ our society pays for enjoying the freedom and privacy safeguarded by the Fourth Amendment.”73 Nonetheless, judges are bitterly divided over when the strong medicine of suppression is warranted.

Writing for the Court in Herring, Roberts agreed that Bennie Herring’s rights had been violated but refused to grant a suppression remedy. In his view, Anderson had done nothing wrong and Dale County had merely (and perhaps forgivably) failed to update its computer system. Such clerical error didn’t call for suppression, Roberts reasoned, because that penalty “has always been our last resort, not our first impulse.” Roberts’s opinion highlighted suppression’s “costly toll upon truth-seeking and law enforcement objectives” and recited Justice Benjamin Cardozo’s famous warning that criminals should not automatically “go free because the constable has blundered.” Roberts argued that these costs are justified only when suppression will effectively deter Fourth Amendment violations in the future.

This logic channeled an article by Judge Henry Friendly, a legal giant for whom Roberts clerked fresh out of Harvard Law School in 1979. In Friendly’s influential view, “the sole reason for exclusion is that experience has demonstrated this to be the only effective method for deterring the police from violating the Constitution.”74 In other words, suppression is all about regulating police conduct, and its success in this regard is the sole test of its value. As Friendly explained, “It does not seem consistent with the objective of deterrence that the maximum penalty of exclusion should be enforced for an error of judgment by a policeman, necessarily formed on the spot and without a set of the United States Reports in his hand … The object of deterrence would be sufficiently achieved if the police were denied the fruit of activity intentionally or flagrantly illegal.” Thus, Friendly concluded, to the extent courts doubt that suppressing evidence is an effective way of influencing the police—who are, of course, influenced by a wide range of considerations in deciding when to search and seize—they should shy away from suppression.

In Herring, Roberts followed Friendly and viewed the psychology of police incentives narrowly. He held that to trigger suppression, “police misconduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Even when police violate the Fourth Amendment, then, suppression isn’t allowed unless the police demonstrably acted with gross negligence, recklessness, or deliberate bad faith. In other words, suppression is about punishing egregiously bad cops, not protecting individual rights generally by pushing police to zealously respect every minute detail of Fourth Amendment doctrine. Applying this rule, the Chief concluded that Dale County’s negligence in failing to keep its computer system updated didn’t justify suppression of Herring’s drugs and firearm.

Ginsburg struck back in a dissent joined by Justices Stevens, Souter, and Breyer. Writing with gusto, she challenged Roberts’s view of the Fourth Amendment and his approach to Bennie Herring’s situation. Starting with fundamentals, Ginsburg rejected a purely deterrence-based account of suppression. Instead, she invoked what she called a “more majestic conception of the Fourth Amendment.” Suppression deters, she argued, but it also “enables the judiciary to avoid the taint of partnership in official lawlessness.” It thereby “assures the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior.” In contrast to the Chief’s focus on whether courts can effectively regulate police, Ginsburg highlighted judicial integrity and broader public respect for civil rights.

Ginsburg also took issue with the Chief’s logic as applied to the case before him. Why, she asked, can’t suppression deter simple mistakes? And why isn’t it worth the price? In other areas of law, we often impose penalties for negligence to encourage greater care. If you make a mistake and injure a neighbor, you typically pay for those injuries; this rule is both fair and designed to encourage careful conduct. By the same token, she argued, if police departments aren’t punished for their mistakes, they may lack sufficient incentive to train their staffs and check for error. This is especially true for high-maintenance databases, which, Ginsburg wrote, “form the nervous system of contemporary criminal justice operations.” Indeed, “inaccuracies in expensive, interconnected collections of electronic information raise grave concerns for individual liberty.” In her dissent, Ginsburg argued that suppression is justified because it protects liberty against incompetence, not just intentional wrongdoing.

In Herring, as in many civil rights cases, the Roberts Court acknowledged a rights violation but refused to provide any remedy. The Chief’s opinion took a starkly limited view of the role courts should play in creating incentives for police to follow the law. The cost of excluding evidence, he maintained, isn’t worth the price—especially when officers do not knowingly or intentionally violate a suspect’s rights. Ginsburg’s dissent offered a totally different view of the basis for suppression and a broader account of how the threat of suppression can be used to regulate law enforcement. As in so many other areas of law, a majority of the Roberts Court instructed the courts to adopt a more minimal role in American life, leaving day-to-day enforcement of constitutional values in searches and seizures largely to the police and the public.

*   *   *

Whereas Herring revealed skepticism of the remedy for a rights violation, this Court’s Fifth Amendment rulings have pointed to even deeper skepticism of some well-known constitutional rights—including the various rights specified in the famous Miranda warning. Berghuis v. Thompkins, decided in June 2010, is a perfect example.75

On February 22, 2001, Van Chester Thompkins was interrogated by officers who suspected him of a strip mall shooting. He was locked in a small room, placed on a hard chair, and questioned for three straight hours, even after he refused to sign a form waiving his right to remain silent. For nearly the entire interrogation, Thompkins sat silently. He spoke only twice, to complain about the chair and decline a peppermint. But that changed after two hours and forty-five minutes. As the Court recounted in its opinion: “[Officer] Helgert asked Thompkins, ‘Do you believe in God?’ Thompkins made eye contact with Helgert and said ‘Yes,’ as his eyes ‘welled up with tears.’ Helgert asked, ‘Do you pray to God?’ Thompkins said ‘Yes.’ Helgert asked, ‘Do you pray to God to forgive you for shooting that boy down?’ Thompkins answered ‘Yes’ and looked away. Thompkins refused to make a written confession.” Over his vehement objection, the prosecution used these answers at trial. Thompkins was convicted of murder.

The Roberts Court’s right-leaning majority is, for the most part, critical of the vast expansion of criminal defendants’ rights that took place in the mid-twentieth century. It is sensitive to all the ways in which those rights tie the hands of the police and sometimes result in wrongdoers getting off on “technicalities.” It worries about judicial overreaching and sees relatively little benefit in maintaining such an intricate network of rules to govern law enforcement. Moreover, it tends to doubt that all those rules are really required by the Constitution; if it had been sitting in the 1960s and ’70s and had been asked whether to impose many of them, this Court would likely have declined.

Fifth Amendment rights are no exception to this view; in fact, Scalia and Thomas both voted in 2000 to overturn Miranda entirely.76 As a consequence, the Roberts Court is sometimes uncompromising in imposing stringent requirements for invoking and benefiting from Miranda: if a suspect wants to rely on Miranda’s formidable protections, is it really too much to ask that he say so at the time and then stick to his guns if pushed by the police?

Or so the Court reasoned in Berghuis v. Thompkins: in a five-to-four opinion for the right-leaning justices, Kennedy found no Miranda violation. He first held that a suspect can invoke his right to silence—and thereby cut off questioning—only by doing so “unambiguously.” Since Thompkins “did not say he wanted to remain silent,” he hadn’t invoked his Miranda rights, so the police were free to continue the interrogation. Kennedy then held that, as a separate matter, Thompkins had impliedly waived his right to remain silent by answering Helgert’s questions. Kennedy reasoned that Thompkins had been read his rights, understood them, and then freely chose to speak.

In her first major dissent as a justice, and in a forecast of her emerging role as a champion of defendants’ rights, Sotomayor criticized the Court for “turn[ing] Miranda upside down.” Whatever the rule might be as to other rights, she underscored the irony of requiring anyone to speak—and to do so unambiguously—in order to invoke a supposed right to remain silent. As she explained, “advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected.” In addition, she wrote, the harsh rule of Berghuis is totally unnecessary. If a suspect’s invocation of his legal right to silence is at all unclear, police can (and should) ask simple follow-up questions.

Sotomayor then returned to the original basis for Miranda: the Constitution does not allow confessions obtained through coercion, and courts presume that custodial interrogations are inherently coercive. The warnings are designed to dispel that air of coercion—which can overbear free will—by ensuring that suspects know their rights. As a result, she explained, courts presume against waiver of the Miranda rights and demand proof that waiver really occurred: if a suspect’s self-incriminating statements while in custody could be taken as proof in themselves that he freely chose to waive his rights, Miranda doctrine would be at war with its own premises. Further, Sotomayor argued, it could hardly be said that Thompkins had freely decided to give up his right to silence by remaining almost completely silent for just under three hours and then offering three one-word answers to Helgert’s questions about God. This was precisely the sort of coercive atmosphere that Miranda targets.

In sum, Sotomayor warned that Berghuis may eviscerate Miranda by inviting “police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights.” She also sounded a more fundamental note of alarm about a breakdown in Miranda’s deepest constitutional foundations.

It would be hard to fault Sotomayor’s practical and doctrinal logic, and the majority made little attempt to do so. But there was a simple reason the majority and the dissent were ships passing in the night: the dissent fully embraced a precedent that the majority regarded as dubious from the start. The prospect of allowing police to conduct their interrogations freer of Miranda—and of the judicial effort to regulate the police that it represents—was welcomed by most of the Roberts Court.

*   *   *

In this age of an anti-court Court, it is more important than ever to recall that judges don’t have a monopoly on justice. When they retreat from the field or stand silent, we look elsewhere: to the democratic process, social movements, arbitration, our communities and families, consumer report websites, and other means of ensuring that everyone comply with the law. Indeed, the Constitution presumes that democracy, not litigation, is how we’re supposed to resolve many disputes.

Yet sometimes courts truly are the last, best hope for justice. And sometimes the Constitution or an Act of Congress does tell us that we have a legal right enforceable in court, even against the most powerful opponents. One of the defining features of the Roberts Court has been its extremely narrow view of the circumstances in which that is so—and its willingness to leave plaintiffs and criminal defendants to whatever justice they can find beyond its doors.

Nor is this Court’s trajectory the only force contributing to a substantial diminution of access to judicial justice in twenty-first-century America. Even when courts are open for business, a very different threat looms: the inability of indigent (and even sometimes middle-class) Americans to afford to hire lawyers.77 In criminal cases, it is an outrage that we have yet to fulfill the half-century-old promise of the Court’s 1963 ruling in Gideon v. Wainwright, which held that the Constitution requires the provision of competent defense counsel to all criminal defendants, even those who cannot afford to hire one on their own.78 In civil cases, which can involve equally momentous stakes, the situation is also dire. As Attorney General Eric Holder remarked in April 2013, “Estimates suggest that more than 80 percent of civil legal needs faced by low-income individuals currently go unmet.”79 These failures, Holder added, range across “matters involving the care and custody of minor children and dependent adults, to questions of personal finance, housing, employment, and even public safety.” At deportation, eviction, asylum, and custody proceedings, the most vulnerable among us are rarely represented by lawyers, who can provide valuable counsel at these life-altering moments. As Stanford Law Professor Deborah Rhode has summarized, “We tolerate a system in which money often matters more than merit, and equal protection principles are routinely subverted in practice.”80

The availability of justice in courts of law is also under threat from the Executive Branch, which has invoked its constitutional power to conceal weighty surveillance and national security matters from the Judiciary.81 It has been aided in this effort by deferential judicial opinions. As a consequence, some of the fundamental legal issues of our times are being debated and decided without any judicial input or oversight. The Obama administration, for instance, has publicly taken the view that it can use drones to kill U.S. citizens abroad when the Executive uses sufficient internal process to deem them an imminently dangerous threat.82 Whatever the merits of this position as a matter of law, it is also a statement about the role of courts in a key national security issue.

A different sort of challenge has emerged within the Court itself: the justices are deciding to hear fewer and fewer cases.83 Whereas the Court heard 100 to 150 cases per year just a few decades ago, nowadays it hears around 75 a year. As a result, the Court may play a reduced role in guiding the development and enforcement of the law. It has also allowed terrible injustices to stand uncorrected—in many cases over strong dissents by Sotomayor, who has challenged her colleagues’ willingness to ignore death sentences marred by racist overtones, death sentences where the defense lawyer failed to present any mitigation evidence, and cruel and unusual punishments inflicted on an inmate just because he refused to take his HIV medication.84

One thing is clear: the role of courts in dispensing justice is changing at a rapid clip, and the Roberts Court is playing a central role in engineering that transformation. As the American public loses faith in its institutions of government, the Court remains our most trusted civilian branch. But its approval ratings have dropped steeply in recent years and seem likely to keep falling, at least for the near term.85 In time, perhaps the Court can rise above the disenchantment with government that is our generation’s lot. Much will depend on the Court’s vision of its role—and of the role of courts in general—in American life.

*   *   *

On May 4, 2010, the Supreme Court’s great bronze doors slammed shut with haunting finality. Henceforth, visitors would be relegated to an entirely unremarkable side entrance. Security concerns, the Court ominously explained. Not worth it, responded Breyer and Ginsburg in what they styled a dissent: “This Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself.”86

No longer do the humble and the mighty enter the Court’s inner sanctum beneath a marble promise of “EQUAL JUSTICE UNDER LAW.” Protests will still rock and rage on those forty-four classical steps, which have witnessed the thunder of abortion rallies and the silence of caskets. Visitors can still admire the glorious architecture. But even if the security arguments for closing the front doors were compelling, our nation lost something wonderful and precious on that spring day in 2010. At the same time, we acquired a perfect metaphor for one of this Court’s most remarkable projects: transforming the judicial role in establishing justice under the Constitution.