May 23, 2017

IS A DAY IN COURT THE “AMERICAN WAY”

The Seventh Amendment right to jury trial is vanishing, right before our eyes. Make no mistake about it. Vanishing! And, tragically, the fault for this fecklessness with the Founders lies on the doorstep of the very people who were empowered by Article III with life tenure so they could safeguard the people’s rights – federal judges.

In 1957 the Supreme Court reversed a Houston federal judge’s decision to dismiss the claims of “Negro employees” who were in federal court “asking that their collective bargaining agent be compelled to represent them fairly.” It said that dismissal of such claims was only proper if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” It was good law for 50 years.

But in 2007 the Supreme Court reversed itself, abrogating the “no set of facts” holding in favor of one that permits federal judges to dismiss claims unless they, subjectively, find them to be “plausible.” It is a pernicious, slippery slope!

Adam Liptak’s May 18, 2015, article in the New York Times describes the consequences of the Supreme Court’s flip flop for justice for everyday citizens in America. He observes that, previously cases brought by individuals” were dismissed “42 percent of the time.” Under the new subjective, plausibility standard: 59 percent. The rates of dismissal for corporations’ lawsuits have not changed. Just those for the little guys. According to a new study, quoted by Liptak, the new Supreme Court standards have “hit the powerless the hardest.”

“Truth, Justice, and the AMERICAN WAY.” Is it a hopelessly outdated and nostalgic notion? Is a “day in court” part of our birthright? Or, do we simply not care anymore? Should cases be meritorious and “plausible?” Of course they should. But who do you trust to decide if they are or they are not? Life tenured federal judges? Or your neighbors?

Andy Vickery
Houston, TX

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