Although big Supreme Court cases involving gay marriage, corporate free speech and affirmative action gain more media and public attention, a proliferation of less noticed court decisions on seemingly arcane legal procedural rules are raising barriers to all American citizens seeking their day in court.

Behind the scenes, the court’s changes to Federal Rules of Procedure lead to dismissal of cases brought by harmed consumers, investors and other citizens before the facts are permitted to be determined and weighed. Legal experts wonder if it is possible today for Americans of middle or lower incomes to achieve justice in federal courts.

“Justice-Seeking Ethos” Adrift

“A justice-seeking ethos” guided those who wrote the rules governing federal court procedures back in 1938, says emeritus Harvard Law professor Arthur R. Miller, who has taught procedural law for 50 years and recently looked back. “[They] believed in citizen access to the courts and in the resolution of disputes on the merits, not by tricks or traps or obfuscation.”

Sadly, continues Professor Miller in a piece in the NYU Law Review, “We have strayed from that mandate; the drift is producing negative consequences for our civil justice system, as well as for some of the democratic principles underlying it.”

The views of one man? Yes, but Arthur Miller’s students have included Chief Justice John Roberts, former New York Governor and Attorney General Eliot Spitzer and former Senator Russ Feingold, among other leaders.

Now, Chief Justice Roberts’ law professor, who currently teaches at NYU, says the Supreme Court “seems to have its thumb on the scale favoring corporate and government defendants. . . [and impairing] access to the federal courts for many citizens.”

How has this happened? Professor Miller recently told The New York Times: “The Supreme Court has altered federal procedure in dramatic ways, one step at a time, to favor the business community. . . [by] increased grants of summary judgment [dismissal of cases without considering their merits], tightening scientific evidence, rejecting class actions, heightening the pleading barrier and wholesale diversions into arbitration.”

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