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America's Dwindling Access to the Federal Courts

The Daily Journal
07/25/2011

Every litigator knows cases are won just as often on procedural issues as on the merits. Because procedural rules and standards govern who has a right to sue and what courts have the power to hear claims, plaintiffs and defendants have always used procedure to their advantage whenever possible. Likewise, American legal history is full of overt and covert efforts by lawmakers -- both legislative and judicial -- to alter procedural standard to restrict or expand access to the courts. Often, these changes in procedure are not neutral revisions of the legal process; they were intended to, and do, impair or bolster substantive legal rights.

For the past 30 years, the dominant political philosophy in the United States has been the anti-tax, anti-regulation, pro-business movement conservatism first championed by Barry Goldwater and most associated with Ronald Reagan. Movement conservatism has inspired a dramatic shift of political power and influence away from individuals, or groups representing collections of individuals, and the concentration of that power and influence in corporate, financial, military, and government institutions.

Our Supreme Court has been deeply affected by this political shift. With the arguable exception of Justice Ruth Bader Ginsburg's replacement of Byron White, every Supreme Court appointment since the Johnson administration has made the Court more conservative and more solicitous of institutional concerns. Under the Roberts Court, with its four reliable movement conservative members, the pace of proinstitutional procedural changes has only accelerated.

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Daniel Purcell is a partner at Keker & Van Nest LLP. He litigates a variety of cases, with a focus on legal malpractice defense, antitrust and general commercial disputes. He also maintains an active pro bono practice.