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The Supreme Court and Federal Court Access

Since 1993, the Clearinghouse has published an annual review of U.S. Supreme Court decisions implicating access to the federal courts. Below is the entire collection of articles in the series.

The U.S. Supreme Court’s 2017–18 Term

A Taste of the New Normal

By Jane Perkins, Gary F. Smith, & Mona Tawatao

The U.S. Supreme Court charted a confident and decidedly conservative path during the 2017–18 Term. Common were 5-to-4 rulings. The conservative justices controlled the outcome of most cases affecting access to federal courts and ruled on issues such as standing and separation of powers, mootness, statutory construction and deference, injunctions, standard of review, stare decisis, timeliness of appeals and tolling, and administrative procedure.

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Access Decisions in the 2016–17 Term

A (Mostly) Subdued U.S. Supreme Court in a Year of Political Upheaval

By Mona Tawatao, Jane Perkins, & Gary F. Smith

The U.S. Supreme Court’s 2016–17 Term operated with only eight justices until the confirmation of Justice Neil Gorsuch in April. Perhaps surprisingly in such a politically tumultuous year, the Court issued many unanimous decisions. Several of the Court’s decisions—on topics such as tribal sovereign immunity, service by mail to another country, and attorney fees in a case of bad faith—implicated plaintiffs’ access to the federal court system.

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The U.S. Supreme Court’s 2015 Term

Access Decisions from an Eight-Member Court

By Gary F. Smith, Gill Deford, Jane Perkins & Mona Tawatao

The U.S. Supreme Court's 2015 Term will be remembered principally for the unexpected death of Justice Antonin Scalia and how the Senate's failure to confirm his successor forced the Court to work through its docket with only eight justices. The Court's opinions analyzed preemption, deference to agency decisions, appealability of administrative actions, attorney fees, standing, mootness, arbitration, statutes of limitations, exhaustion of administrative remedies, statutory construction, and other issues that control litigants' access to the federal courts.

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The U.S. Supreme Court’s 2014 Term

High- and Low-Profile Decisions with Lurking Access Issues

By Gary F. Smith, Gill Deford, Jane Perkins & Mona Tawatao

The U.S. Supreme Court’s 2014 Term featured high-profile cases on the Patient Protection and Affordable Care Act and same-sex marriage. In addition to their big issues, those cases touched on access to federal courts; for example, King v. Burwell, the Affordable Care Act case, examined questions of statutory construction. Other cases this Term that did not garner as much public attention analyzed the supremacy clause, deference to agency decisions, stare decisis, and other issues that control litigants’ access to federal courts.

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The U.S. Supreme Court’s 2013–2014 Term

Both Divided and Unanimous

By Mona Tawatao, Gill Deford, Jane Perkins & Gary F. Smith

The U.S. Supreme Court’s 2013–2014 Term demonstrated an ideological divide in a slew of 5-to-4 decisions, notably Burwell v. Hobby Lobby, impeding access to health care. Sixty-five percent of the decisions this Term were unanimous, some decided on narrow grounds, many implicating access to federal courts. These decisions included rulings on class actions, standard of review, contractual statutes of limitation, preemption, finality of judgments, and timeliness of appeal.

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The Supreme Court’s 2012–2013 Term

Restrictions on Court Access Just “Too Darn Bad”

By Jane Perkins, Gill Deford, Gary F. Smith & Mona Tawatao

Government surveillance and same-sex marriage led off the high-profile federal court access cases that the U.S. Supreme Court decided last Term, but the Court decided many other access cases as well, ruling on issues such as sovereign immunity, arbitration, deference, and preemption. The last attracted particular attention from the Court, which handed down seven noteworthy preemption decisions; most of these, surprisingly, were unanimous. Two Title VII decisions will make proving employment discrimination more difficult for plaintiffs.

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Beyond the Affordable Care Act Decision

Federal Access Issues in the Supreme Court’s 2011 Term

By Mona Tawatao, Jane Perkins, Gill Deford & Gary F. Smith

The U.S. Supreme Court’s 2011 Term was lively, even apart from the landmark health care act decision. In two other high-profile cases, the Court found that federal law preempted most of Arizona’s newly enacted immigration law and rejected a mootness claim in a challenge to the use of union dues. The Court analyzed statutory construction and maintained its allegiance to arbitration agreements; the Court found federal courts retained jurisdiction under a consumer law statute. The Court favored private property owners in two cases under the Administrative Procedure Act and turned a challenge to state Medicaid amendments into an Administrative Procedure Act case. The Court rejected the attempt to create a Bivens claim but allowed postconviction habeas corpus petitions to move forward in the face of potential case-killing procedural issues. [Editor's Note: See complete collection of articles in the federal court access series.]

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Access Issues in the U.S. Supreme Court's 2010 Term

Litigation Is Not Getting Any Easier

By Gill Deford, Jane Perkins & Gary F. Smith

The U.S. Supreme Court in its 2010 Term continued to throw boulders on the path to federal court, the Wal-Mart case limiting class actions being a well-known example. The justices limit access in other ways, in some cases going through contortions to arrive at an interpretation: deference cases (continued to defer to agency action) and preemption cases (preempted California law on arbitration clauses). The Court denied standing to taxpayers in an establishment clause case, with Justice Kagan dissenting from the majority’s result-oriented reasoning. However, in two employment law cases, the Court overturned lower-court rulings dismissing suits for failure to state a claim, and failure-to-state-a-claim cases did not intepret Twombly and Iqbal strictly.

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The U.S. Supreme Court's 2009 Term

Justice Stevens's Last Round in the Access Battle

By Gary F. Smith, Jane Perkins & Gill Deford

The enforcement of mandatory arbitration agreements, civil rights, attorney fees, and sovereign immunity were among the court-access issues subject last Term to the U.S. Supreme Court’s scrutiny. In an employment discrimination case the Court held that a challenge to Chicago’s hiring practice was not barred by the statute of limitations: each time the city relied on the hiring practice it violated Title VII anew. Results in two fo the Court’s decisions on attorney fees were contrary to the interests of lower-income people and their counsel: fees awarded under the Equal Access to Justice Act are payable to the plaintiff, not to the attorney, and fee enhancements are inappropriate in almost all cases. Justice Sonia Sotomayor's first opinion concerned interlocutory appeals. As a counterpoint, this was Justice John Paul Stevens's last term. He will be missed.

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The Supreme Court's 2008-2009 Decisions on Court Access

The March to the Right Continues

By Gary F. Smith, Matthew Diller, Jane Perkins & Gill Deford

The Roberts Court continued on its conservative course, restricting plaintiffs’ access to federal court in several cases, involving pleading requirements, deference, standards for preliminary injunctions, stare decisis, and postjudgment relief. In Ashcroft v. Iqbal the Court again restricted Rule 8 notice pleading. Winter v. National Resources Defense Council, a case pitting environmentalists against the Navy, changed the standard that some appellate courts use to grant a preliminary injunction. Horne v. Flores made it easier to overturn remedial injunctions in “institutional reform” cases. In another case the Court found it easy to reject stare decisis when most justices disagreed with the precedent. However, the Court found that Title IX did not preclude a Section 1983 action and where politics, money, the judiciary, and corporate litigation mixed, recusal was required.

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The Supreme Court's 2007-2008 Term

Relatively Quiet on the Access Front

By Gill Deford, Gary F. Smith, Matthew Diller & Jane Perkins

In a few of the limited number of decisions focusing on federal court access in its 2007-2008 Term, the U.S. Supreme Court actually expanded access in some respects. In Federal Express Corporation v. Holowecki, for example, the Court confirmed that the plaintiff satisfied the Equal Employment Opportunity Commission’s definition of a “charge.” In some civil rights cases the Court employed stare decisis to protect claims of discriminatory retaliation in the workplace. The Court also took up claim preclusion, paralegal compensation, and cross-appeal requirements.A free PDF version of this article, which includes hyperlinks to cited authority, is available online.

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The Supreme Court's 2006-2007 Term

The Shift to the Right Takes Shape

By Jane Perkins, Gill Deford, Matthew Diller & Gary F. Smith

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.

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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 & Matthew Diller

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.

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Win Some, Lose Some

The Rehnquist Court's Final Chapter on Access to Courts

By Matthew Diller, Gill Deford, Jane Perkins & Gary F. Smith

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.

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Federal Court Access Issues in the U.S. Supreme Court's 2003-2004 Term

By Gill Deford, Jane Perkins, Gary F. Smith & Matthew Diller

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.

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The U.S. Supreme Court's 2002–2003 Decisions on Federal Court Access

By Jane Perkins, Gill Deford, Matthew Diller & Gary F. Smith

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.

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Highlights from the U.S. Supreme Court's 2001–2002 Decisions on Federal Court Access

By Gary F. Smith, Matthew Diller, Gill Deford & Jane Perkins 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. Download this article   |   Read more ➢

Beyond Bush v. Gore

Highlights from the Supreme Court's 2000–2001 Decisions Concerning Access to the Courts

By Jane Perkins, Gary F. Smith, Matthew Diller & Gill Deford 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. Download this article   |   Read more ➢

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 F. Smith & Gill Deford 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. Download this article   |   Read more ➢

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 B. Goldberg, Brian Lawlor, Jane Perkins & Yolanda Vera

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.

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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 & Yolanda Vera

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.

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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 & David Vladeck

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.

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"Access" Issues in the Supreme Court's 1992 Term

By Laurie Davison, Gill Deford, Matthew Diller, Shelley Jackson & Brian Lawlor 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. Download this article   |   Read more ➢
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