Federal Court Access

For over 16 years, Clearinghouse Review has annually published a review of Supreme Court decisions concerning access to the federal courts. In an effort to make the article more useful to advocates, we are now making the federal court access article available free of charge in PDF format, and we have included hyperlinks to statutory authority and caselaw cited in the footnotes of the article. A print version of this article will be published in the November-December 2009 issue of Clearinghouse Review as well.

The Supreme Court's 2008-2009 Decisions on Court Access: The March to the Right Continues
by Gary F. Smith, Matthew Diller, Jane Perkins, and Gill Deford

In the fourth Term of the Roberts Era, the U.S. Supreme Court resumed its steady conservative course by restricting a plaintiff's access to the federal courts. In general, the Court's decisions this Term implicating issues of access (including pleading requirements, deference, standards for preliminary injunctions, stare decisis, and postjudgment relief) also demonstrated its now well-established tendency to favor the government and business over the individual and the environment.

Below are links to federal court access articles from earlier years:

The Supreme Court's 2007-2008 Term: Relatively Quiet on the Access Front,
by Gill Deford, Gary F. Smith, Matthew Diller, and Jane Perkins

For aficionados of the U.S. Supreme Court's federal access decisions, the 2007 Term was a disappointing one indeed. Instead of the myriad of standing, mootness, and other jurisprudential holdings intended to keep whining plaintiffs from their day in federal court, the Court seemed to focus on the merits of significant issues. Nevertheless, some of this Term's decisions should open the doors of the federal courthouse a little wider for civil rights plaintiffs.

The Supreme Court's 2006-2007 Term: The Shift to the Right Takes Shape,
by Jane Perkins, Gill Deford, Matthew Diller, and Gary F. Smith (November-December 2007)

Chief Justice Roberts had hoped in this past term to achieve “a greater degree of consensus.” This has not happened since the Court continues its ideological shift to the right with Justice Kennedy as the all-important swing vote. The Court continued to close the courthouse door to plaintiffs in a variety of contexts. In upholding the dismissal of a class action suit charging Sherman Act violations, the Court created a heightened fact-pleading requirement. In a bit of good news, the Court found a state to have standing to challenge the failure to regulate greenhouse gas emissions. However, the Court narrowed taxpayer standing to challenge executive branch actions. In school desegregation cases the Court seemed to create a new theory of standing where the possibility of harm suffices as “injury-in-fact” allowing students not harmed by school policies to challenge those policies nevertheless. The Court engaged in interesting Chevron analyses to uphold agency regulations and policies and rejected attorney fee-shifting where a preliminary injunction was subsequently overturned.

The 2005-2006 U.S. Supreme Court Decisions on Access to the Federal Courts:
The First Term of the John Roberts Era,
by Gary F. Smith, Jane Perkins, Gill Deford, and Matthew Dillard (November-December 2006)

In this past term, the “new” Supreme Court, with Chief Justice John Roberts at its helm and recently appointed Justice Samuel Alito, generally revealed little about its approach to federal court access issues. One exception was the interpretation of the exhaustion requirement of the Prison Litigation Reform Act of 1995. The Court required “proper” exhaustion, including compliance with administrative timelines and procedures and thus narrowed federal court access for incarcerated persons. The Court also restrictively interpreted certain provisions of the Individuals with Disabilities Education Act (IDEA). The Court held that parents, not the school district, bore the burden of persuasion at due process hearings on individualized education programs. In another case, the Court held that the IDEA’s fee-shifting provision did not authorize recovery of expert witness fees as part of costs. And the Court’s rejection of government’s claims of sovereign immunity in three major decisions was not viewed as marking a new direction for the Roberts Court; these holdings were based on narrow issues.

Win Some, Lose Some: The Rehnquist Court's Final Chapter on Access to Courts,
by Matthew Diller, Gill Deford, Jane Perkins, and Gary Smith (November-December 2005)

In its final year as the Rehnquist Court, the U.S. Supreme Court continued to chip away at plaintiff's access to federal courts, although the 2004-2005 term brought no blockbusters. The Court declined to treat restraining-order enforcement as property for due process purposes, but it also declined to continue its previous narrowing of commerce clause jurisdiction where marijuana was involved. Regarding Section 1983, the Court rejected amicus United States' argument for a conclusive presumption against Section 1983 and found a private right of action for retaliation under Title IX. The Justices continued to spar among themselves over the deference due administrative agencies.

Federal Court Access Issues in the U.S. Supreme Court's 2003-2004 Term,
by Gill Deford, Jane Perkins, Gary Smith, and Matthew Diller (November-December 2004)

The U.S. Supreme Court's–2004 rulings on federal court access were often buried in decisions better known for their substantive holdings. This term the Court upheld the power of the federal government against state claims of sovereign immunity; potentially narrowed the already limited access to federal court of plaintiffs whose federal claims are intertwined with "the realm of domestic relations" and narrowed the scope of agency inaction subject to challenge under the Administrative Procedure Act. The Court also addressed the deference to Chevron v. Natural Resources Defense Council, the statute of limitations for civil actions arising under an act of Congress, the standard of review of a preliminary injunction, mandamus, and Equal Access to Justice Act attorney fees.

The U.S. Supreme Court's 2002–2003 Decisions on Federal Court Access,
by Jane Perkins, Gill Deford, Matthew Diller, and Gary Smith (November-December 2003)

In its 2002–2003 term the U.S. Supreme Court issued several opinions of interest to practitioners in legal services. Most significant, the Court upheld the constitutionality of Interest on Lawyers' Trust Account programs and, in a case examining states' sovereign immunity, allowed private individuals to sue for violations of the Family Medical Leave Act. The Court reaffirmed the importance of consistent application of the equal protection and due process guarantees of the Fourteenth Amendment; expanded the concept of standing; made positive references to the class action mechanism; addressed ripeness and supplemental jurisdiction; expanded the scope of federal removal jurisdiction; and considered the jurisdiction of federal magistrate judges.

Highlights from the U.S. Supreme Court's 2001–2002 Decisions on Federal Court Access, by Gary F. Smith, Matthew Diller, Gill Deford, and Jane Perkins (November-December 2002)

A number of decisions of the U.S. Supreme Court during its 2001–2002 term will affect the ability of individuals to gain access to the justice system. Three of these decisions curtail the scope of federal rights and remedies. Four decisions implicate issues of state sovereign immunity. Other notable decisions involve pleading requirements, statutes of limitations, administrative exhaustion, and the scope of judicial deference to agencies' statutory interpretations.

Beyond Bush v. Gore: Highlights from the Supreme Court's 2000–2001 Decisions Concerning Access to the Courts, by Jane Perkins, Gary Smith, Matthew Diller, and Gill Deford (November-December 2001)

Several decisions of the U.S. Supreme Court last term will have an impact on individuals' access to the justice system and will affect federal court practice for public interest practitioners. In two of these decisions, the Court said that states were not subject to suit under two major civil rights laws. Other notable decisions involved the state action doctrine, attorney fees, retroactive application of statutes, judicial estoppel, and the scope of deference that judges must accord administrative agencies.

Decisions on Federal Court Access During the Supreme Court's 1999–2000 Term:
Some Social Security, a Little Federalism, and More of the Usual,
by Matthew Diller, Jane Perkins, Gary Smith, and Gill Deford (November-December 2000)

Several decisions issued by the U.S. Supreme Court last term will affect federal court practice for public interest practitioners. Two involved federal court access under the Social Security Act and two others rejected the Age Discrimination in Employment Act and the Violence Against Women Act as beyond the scope of congressional power to abrogate state sovereign immunity. Other decisions upheld federal court access in the face of challenges based on lack of standing or mootness and reviewed the standards of deference applicable to administrative agencies' interpretations of federal statutes.

The Supreme Court's 1998–99 Term: Federalism, State Action, and Other Cases Affecting Access to Justice,
by Gill Deford, Matthew Diller, Brian Lawlor, Jane Perkins, and Yolanda Vera (November-December 1999)

The Supreme Court this past term expanded upon previous decisions protecting states from suit without consent and leaped once again into the morass of "state action" law. Other cases examined by the Federal Court Access Group explore some of the Court's procedural decisions pertaining to due process, deference, removal, class certification, and the collateral-order doctrine.

The Supreme Court's 1997–98 Term:
The Texas Interest on Lawyers' Trust Account Case and Others Affecting Access to Justice,
by Gill Deford, Matthew Diller, Deborah Goldberg, Brian Lawlor, Jane Perkins, and Yolanda Vera
(November-December 1998)

The Supreme Court decision in Phillips v. Washington Legal Foundation has serious implications for legal services funding in that it affects Interest on Lawyers' Trust Account funds, which have been a vital funding source for legal services and other public interest law programs nationwide. Other 1997–98 Court decisions with consequences for legal services dealt with administrative law practice, federal court removal, immunity defenses, standing, and ripeness.

Class Certification, Section 1983, and More:
Decisions Concerning Access to Federal Court During the Supreme Court's 1996–97 Term,
by Gill Deford, Matthew Diller, Brian Lawlor, and Yolanda Vera (November-December 1997)

This past term the Supreme Court declined to restrict actions under section 1983 and to dissect the doctrine of Ex parte Young. The Court ruled in favor of parents unable to pay court fees in parental termination proceedings and explored the issue of the privatization of services traditionally performed by the government. This article explores some of the major decisions of the Court's 1996–97 term.

Governmental Immunity and Other Impediments:
Decisions Concerning Access to Federal Court During the Supreme Court's 1995-96 Term,
by Laurie Davison, Gill Deford, Matthew Diller, Shelley Jackson, Brian Lawlor, and David Vladeck
(November-December 1996)

Last term, the Supreme Court issued a number of decisions that create significant obstacles for individuals seeking access to and remedial relief from federal courts. Although a few of these decisions were benign, those in the cases against government entities were troubling at best.

Supreme Court Term 1993-94: Decisions Affecting Access to Federal Courts,
by Laurie Davison, Gill Deford, Matthew Diller, Shelley Jackson, and Brian Lawlor (August-September 1994)

This article examines Supreme Court term 1993-94 decisions on procedural and jurisdictional issues concerning access to federal courts.

"Access" Issues in the Supreme Court's 1992 Term,
by Laurie Davison, Gill Deford, Matthew Diller, Shelley Jackson, and Brian Lawlor (November 1993)

During its 1992 term, the Supreme Court decided a number of cases that affect low-income people's access to the federal courts, including cases concerning attorney fees, standing, and retroactive application of federal statutes. This article summarizes the decisions and gives a brief overview of the access issues that may arise in the Court's 1993 term.

Minding the Courthouse Door:
Decisions Concerning Access to Federal Court Issued During the Supreme Court's 1991-92 Term,
by John Boston, Laurie Davison, Gill Deford, Matthew Diller, Shelley Jackson, and Brian Lawlor
(November 1992)

This article describes a number of decisions issued by the Court during the last term that have significant implications for the ability of low-income individuals to obtain redress in the federal courts.