The Courthouse Crusade Against Government

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Unsatisfied with these political victories, the business community and the Republican Congress then set its sights on a higher goal: reining in class action suits across the board. They introduced a bill to do just that in 2004. It was entitled, with typical cynicism, as the “Class Action Fairness Act.” But its intent was far from fair. It would forbid citizens from filing major class action suits in state courts, and force them into the already overburdened federal courts. Moreover, federal judges do not usually certify cases that are based on state consumer protection laws, which means these cases would be blocked. Public Citizen President Joan Claybrook commented that “This is an issue of basic fair play. The American Revolution was fought, in part, over no access to the civil courts so that citizens could redress their grievances. This is a right that is essential in a democracy. But this right will, in many cases, literally be taken away by this legislation.”20

Over eighty different consumer, senior, environmental, labor, and civil rights organizations worked against the bill. Several state and federal judge associations and many state attorneys general opposed it as well. The New York Times eventually weighed in with an editorial sharply condemning the bill:

Under the phony banner of "tort reform," this act is a legislative gift to wealthy special interests. It would make it harder for Americans to win redress in court for corporate violations of state civil rights, health, consumer and environmental protection laws. The act's core provisions would permit big polluters and other companies to delay justice, or even escape justice entirely, by moving most class-action lawsuits from state courts to the overburdened federal courts, which are less familiar with the disputed legal and factual issues. The act would also impose new litigation hurdles and burdens on plaintiffs.21

But powerful forces were amassing to pass the bill. The Chamber of Commerce made passage of this bill their number one priority in 2004 and literally hundreds of business lobbyists were pressuring Congress to pass it. Also, an official of the National Association of Manufacturers stated that this bill was “the biggest thing in years."22 With all of this lobbying pressure and the dominance of Republicans in Congress, it was only a matter of time until this bill was passed. After the bill passed in early 2005, The New York Times observed that “Having spent tens of millions of dollars lobbying for this bill, the United States Chamber of Commerce and allied business groups are understandably pleased. They got what they paid for.” 23

The conservative effort to deny court access to citizens is particularly galling when considered along with their efforts to weaken and roll back the regulations that are supposed to protect the public. When government fails to protect us from cars that roll over, water that poisons our children, and drugs that make us sick, then people can only resort to lawsuits to defend themselves. Conservatives have been aghast when shareholders have sued corporations because the illegal and unethical actions of company officers have cost investors their life savings. But this happened because the Securities and Exchange Commission has been asleep on the job, ignoring these problems. Tort reformers also bemoaned the way lawyers quickly jumped in to sue the makers of the drug Vioxx when it was shown that it caused thousands of unnecessary deaths. But those suits would not have been necessary if the FDA had been on the job and noticed those dangerous side effects sooner. If conservative administrations are going to neglect to protect citizens through vigorous regulation, then it is doubly unfair to also deny them the ability to seek justice in the courts. Citizen lawsuits are not the “plague” that conservative propaganda would have us believe. They are a form of citizen power – and the more we are denied their use, the less powerful and less safe we all become.

Irreversible Decisions

What we are witnessing today is nothing less than a conservative campaign to radically change the law and the legal system of the United States in a way that greatly reduces the power of government and citizens. The political right has engaged in a relentless effort to appoint libertarian-leaning judges and justices that adhere to a minimal-government philosophy. Fortunately, these appointments have come to an end, at least temporarily, with the election of President Obama. But the damage has already been done. These “radicals in robes” have been appointed for life, and many are in their fifties and likely to stay on the job for several more decades. The public is powerless to replace them or to overturn their decisions. There is no democratic accountability here. We will have to live with their legal rulings – and their assaults on government – for the many years to come.


1 Janice Rogers Brown, “Hyphenasia: the Mercy Killing of the American Dream,” Speech at Claremont-McKenna College (Sept. 16, 1999), p. 3.

2 Janice Rogers Brown. “A Whiter Shade of Pale,” Speech to Federalist Society (April 20. 2000).

3 Herman Schwartz, Right Wing Justice: The Conservative Campaign to Take Over the Courts, (New York: Nation Books, 2004) p. 252.

4 Dana Milbank, “Scalia Showing His Softer Side,” The Washington Post, March 15, 2005; Page A02.

5 Herman Schwartz, Right Wing Justice. (New York: Nations Books, 2004), p. 197.

6 Thomas Edsall, "Federalist Society Becomes a Force in Washington," the Washington Post, April 18, 2001 page A04.

7 William Greider, “The Right and U.S. Trade Law: Invalidating the 20th Century,” The Nation, October 15, 2001.

8 See a description of this case in Sharon Buccino, et al., “Hostile Environment: How Activist Judges Threaten our Air, Water, and Land,” Natural Resources Defense Council, July 2001, p. 12.

9 Ibid. p. 12.

10Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985), p. X.

11 Greider, “The Right and U.S. Trade Law.”

12 Buccino, “Hostile Enviroment,” p. 2.

13 Herman Schwartz, Right Wing Justice, p. 221.

14 Adam Cohen, “What's New in the Legal World? A Growing Campaign to Undo the New Deal,” New York Times, December 14, 2004, p. A30.

15Cohen, “What's New in the Legal World? p. A30.

16 Jacob Sullum, “Pot Luck: A victory for federalism,” ReasonOnline, December 19, 2003,

17 Cohen, “What's New in the Legal World? p. A30.

18 About Class Action, p. 1.

19 Promoters, p. 3.

20 Joan Claybrook, “Business-Backed Class Action Bill Locks Consumers Out of Court,” Common Dreams Progressive News Wire, Feb. 7, 2005

21 New York Times, October 22, 2003.

22 Common Dreams,

23 “A Dismal Class-Action Finale, New York Times, February 12, 2005, p. A30.





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