On Tuesday, Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, continued his confirmation hearing before the Senate Judiciary Committee. Among his unimpressive, trite sound bites which had Republicans salivating, there was a patronization of his prose which entailed a quip about legal aid to the poor.
If Wal-Mart can offer basic medical services, why can’t it offer basic legal services? Gorsuch rhetorically asked senators.
Oh, of all the stores he could have chosen.
Access to justice for the poor is indeed a very important issue in this country. A litigant without an attorney, going up against one represented by counsel, is a David-versus-Goliath fight. Many would-be litigants cannot afford attorneys, especially if the injustice they are wishing to overcome is not one involving an inordinately-sizable chunk of money.
The modern class action lawsuit was created in 1966 in part to address this issue. When a plethora of prospective plaintiffs have been wronged in the same way, they can band together with common counsel. This reduces costs and ensures justice even for the poor, especially when a large corporation is in the wrong.
This process, codified under Rule 23 of the Federal Rules of Civil Procedure, was dealt a major blow by the Supreme Court in a 2011 case involving — you guessed it — Wal-Mart.
The case involved prospective class of 1.6 million women who currently or formerly had worked for Wal-Mart alleging discrimination on account of sex. The Court ruled the women could not sue together (decertified the class) and, in a 5-4 decision, held that Rule 23 often compels courts to “peek behind the pleadings” before certifying a class action. (The decision also overturned significant precedent, as explained by Justice Ruth Bader Ginsburg in an impassioned dissent.) This means that onerous and expensive discovery often must precede the process, thus making the plaintiffs’ day in court more onerous, more expensive and less likely. Critics and studies have shown it has had a chilling effect on similar lawsuits.
The author of the opinion was the late Justice Antonin Scalia, who Gorsuch has been nominated to replace. Gorsuch would ostensibly be the swing vote on such a case in the future. And indeed, Judge Merrick Garland, whom former President Barack Obama had nominated more than a year ago for the seat could have been in such a position if he had successfully earned the position — Republicans shamefully refused to even hold hearings for him.
Gorsuch’s track record on class actions, however, is not much better.
Comprehensive evaluations of Gorsuch’s record show him ruling for the defense on class actions time and time again, with a penchant for decertification of classes. The evidence is consistent with an overall trend, advanced by Senate Democrats, of Gorsuch being hostile to the individual and conciliatory toward big corporations.
The Republicans can swoon over Gorsuch’s empty words about legal aid to the poor and downtrodden. But the irony of invoking Wal-Mart in such a pleasantry is not lost. On the issues that will truly matter before such a High and Awesome Court, Gorsuch fails those most in need of his help.
Horwitz is a first-year law student from Houston. He is a columnist, follow him on Twitter @NmHorwitz