NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT

Vol. 27 No. 5 (June 2017) pp. 86-88

NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT, by Sarah Staszak. New York: Oxford University Press, 2015. 320pp. Hardcover $99.00 ISBN 978-0-19-939903-1 Paper $27.95 ISBN 978-0-19-939904-8.

Reviewed by Richard L. Pacelle, Department of Political Science, University of Tennessee. Email: rpacelle@utk.edu.

As the clock ticked down on my qualifying oral examinations, I was feeling optimistic that I was going to survive. But the last question I received was not one I had spent any time preparing for: “Why did you decide to study public law?” I had never examined it very closely. I stammered out a response that had the virtue of being close to truth: I had been energized by the constitutional revolution that was the Warren Court. The times they were a changin’. And I suppose that begs the question what would I do today if I read this book in graduate school?

Few disputes end up being resolved in formal court hearings in front of a jury. Over 90 percent of criminal cases are resolved through a plea bargain of some type. Civil disputes also typically get resolved outside a formal courtroom before the full trial process is engaged. It would be impossible for the judicial system to accommodate trials if the percentages were reversed, or even if half the disputes went to trial. But it is one thing for the parties to a dispute to make the choice to settle the case or enter into a plea bargain arrangement; it is something else for access to the courts to be curtailed or limited. In her comprehensive, but sobering book, Sarah Staszak examines judicial retrenchment and advances a conceptual framework for understanding the changes that have limited access to the court system for many Americans.

It is clear to anyone with a passing interest in the judiciary that the post-Warren Supreme Court has tightened standing requirements and made it more difficult to sustain class action suits. Staszak documents the clear decline in the number and percentage of class action suits, civil rights cases, and civil cases that reached trial in the federal courts. The numbers are staggering, suggesting the full impact of barriers to participation. It is also apparent that limiting access has unequal consequences. Groups and individuals that most need access are typically the ones who are most adversely affected. It is not surprising that access to the federal judiciary has gotten more difficult. But the reasons for the reduced access and their scope are eye-opening.

The author casts a light on the “judicial retrenchment” of court access, the “process by which a range of actors both exogenous and endogenous to the courts and Congress work to scale back access to the courts by targeting the institutional and procedural rules that govern political institutions” (p. 21). Casting light is an accurate assessment because much of what occurs, according to Staszak, is done at a “subterranean” level in the realm of procedural rules. The rules can and have been used to constrict access to the courts.

Staszak argues that attention to Court curbing, threats to jurisdiction, and “grand acts of politics” obscure the quiet and more important process of judicial retrenchment. There are many culprits across the political and institutional spectra that share in the process: “The goal of scaling back access to the courts comes from a multitude of actors both within and outside of the government” (p. 7). She argues that judicial retrenchment is as much—if not more—about Congress, bureaucrats, legal organizations, business, interest group politics, and judicial administrators acting with a variety of political and institutional goals in mind as it is about conservative judges on the nation’s courts. Staszak shows how partisans of all ideological stripes advanced procedures like Alternate Dispute Resolution (ADR) for different reasons and ultimately conservatives on the Court and in Congress were able to bend new and old rules to their advantage.

Those pursuing judicial retrenchment have employed a full range of strategies and tactics to limit access to the Court: standing, use of the Eleventh Amendment, CHEVRON rules for deference to agencies, limits on class actions, revised rules of discovery, pleading, and settlement, the wider use of arbitration, the [*87] expansion of qualified immunity for government officials, caps on attorney’s fees, and circumscribed jurisdiction for the courts.

One of the most striking revelations is the ultimate irony of judicial retrenchment. Change was often co-opted and turned on its head. What started out as a shield to protect workers and the disadvantaged was often transformed into a sword that was used against them. Groups pushed for changes like ADR to protect individuals from backlogged courts only to see general access to the courts curtailed and fewer safeguards left to protect the intended beneficiaries. The original intent of providing access for the politically disadvantaged has been undermined by the subterranean practices of sharply limiting entry to the courts and manipulating the institutional rules that govern judicial access.

Staszak establishes a strong theoretical context for the study, nesting her analysis in an American Political Development (APD) framework. She argues that the changes are a function of three factors: Insularity (the discretion over institutional rules and procedures), Ideology (defined broadly), and Temporality.

The author rejects the simple explanation that the cause is exclusively due to the fact that recent Supreme Courts have closed the doors to litigation or that the changes that helped create the conditions for judicial retrenchment were simply components of a decidedly partisan issue. She argues that the on-going retrenchment of the conservative courts is “only a very recent phase of a much longer and more complicated institutional story” (p. 211).

The process of judicial retrenchment occurred across four distinct (but ultimately related) domains. In four case studies, Staszak carefully and painstakingly traces the evolution of rules and institutions that created judicial retrenchment and what Marc Galanter (2004) called “the vanishing trial.” She is able to trace the current judicial retrenchment to reform efforts that began as much as a century earlier. To limit access to the formal mechanisms of justice, institutional and external actors have attempted to: change the decision makers (focusing on ADR and the Administrative Procedures Act (APA)), change the rules of the game (focusing on the Federal Rules of Civil Procedure (FRCP)), change the venue (focusing on moving things to less formal procedures such as arbitration or mediation) and change the incentives (focusing on removing support like attorneys’ fees to make it more difficult for some aggrieved to find and get legal assistance). Using the best institutional history traditions of APD, Professor Staszak connects the dots.

While there are significant differences between the processes described in the four case studies, there are some consistent underlying patterns. In almost every case, the process began innocently enough as some “good government” motivated reform. The design was usually to help the very people and groups who would later be adversely affected by retrenchment. The initial motivations were often tied to concerns with the judicial system, but they seldom emerged from or were created by standard partisan divides. Proponents of the change focused on procedures and often did not appreciate the substantive implications of the changes they helped launch.

Changing the decision makers from judges and the venue from the courts to administrative agencies were intricately tied to the growth of the administrative state. Newly created agencies were empowered with quasi-judicial as well as quasi-legislative power. Proponents of the evolving administrative state, led by President Franklin Roosevelt, valued expediency and saving resources, but also sought to circumvent the courts and the legal profession that they considered to be a drag on their initiatives and the defenders of a failed status quo. Presidents have tried to protect the province of the administrative agencies and occasionally that meant supporting initiatives that might limit the reach of the courts.

The birth of ADR was tied to a desire to help the average individual and employees. Courts were crowded, litigation was costly, and the adversarial system engendered unnecessary conflict. Ultimately business and corporate interests were able to use ADR to serve their purposes. But in the long run, the growth of ADR became another barrier to use of the courts: a change in the locus of decision making from trained judges. The bar, lawyers, and judges fought this “Judicialization of Administrative Procedure” with mixed success.

The change of venue case study also concentrated on the APA. Calls for revisions have been [*88] vocalized over the last seven decades and alliances have shifted, but the APA itself has undergone few large scale legislative changes. That does not mean that presidents and Court interpretations of the act have not wrought significant changes over time. Indeed, few of the critical statutes and landmark precedents that were foundations of the rights movement have been overturned, but procedural changes have had a major impact on access to the courts.

The change of the rules started innocently enough, once again to assist those who would be more adversely affected by the delay and prohibitive cost of formal judicial proceedings. While this was similar to the process of growing ADR, the change in the rules (primarily the FRCP) divided lawyers and judges and represented a different dynamic.

The major incentives concentrated on attorneys’ fees. The ability to assess fees played a very important role in helping to create a foundation for civil rights actions. The Court also issued a major landmark in MONROE V. PAPE (1961), a decision that revived the use of section 1983 of a Reconstruction period Civil Rights Act to allow individuals to sue governmental officials. These initiatives helped generate a significant growth in law suits. But they also triggered a series of responses. Republicans in Congress pursued a strategy to limit civil rights suits while encouraging big business to use these vehicles to sue the federal government. And the Supreme Court took up retrenchment by sharply limiting the scope of section 1983 suits and attorney fees, often in the face of Congressional support particularly for the latter.

Any critiques of this book would be small quibbles. The detailed narratives in each of the four substantive chapters are valuable. But they come at a bit of a cost. The reader may lose the forest periodically for the trees. The author has an elaborate theoretical framework, but it occasionally gets lost in the details. But let me underline that these are relatively minor concerns.

So what would I do today if I was a beginning graduate student looking for a research area? The Rehnquist or Roberts Court would not have provided the same catalyst. Studying Congress would be out. Who would study an institution with a less than ten percent favorability rating? And as for studying the Presidency? Well there is always Comparative or International Relations or Political Theory.

REFERENCES:

Galanter, Marc. 2004. “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts.” JOURNAL OF EMPIRICAL LEGAL STUDIES Volume 1: 459–570.

CASE REFERENCES:

CHEVRON V. NATIONAL DEFENSE COUNCIL, INC. 467 U.S. 837 (1984).

MONROE V. PAPE 365 U.S. 167 (1961).


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© Copyright 2017 by author, Richard L. Pacelle, Jr.