Chief Justice Roberts Takes a Fourth Bite at the Apple

By Michael Dorf

The Chief Justice's Year-End Report on the Federal Judiciary was released at 6 p.m. on New Year's Eve, perhaps in the hope that it would be ignored. It wasn't. An article by Adam Liptak in The New York Times quotes various civil procedure scholars who are critical of the very developments that Chief Justice Roberts praises in his report. In a follow-up post at the end of the week, I'll say something about the view of the legal profession expressed in the Chief's report. Here I want to reflect on the misdirection in the report.

The Chief devotes nearly all of his report to praising the recently adopted amendments to the Federal Rules of Civil Procedure, which went into effect on December 1. According to the Chief's report, the amendments--and especially language in Rule 26 that limits discovery to matters that are "proportional" to the asserted claims and defenses--place a new common-sense limit on discovery run amok. Indeed, the Chief begins and concludes his report with a colorful simile that compares modern litigation to dueling. If our system for the peaceful resolution of disputes does not function reasonably, the Chief darkly warns, people might feel the need to resort to private violence.

The scholars quoted in the Liptak article worry that the amendments will make it more difficult for civil rights plaintiffs and others to litigate in federal court. Suja Thomas expressed what appeared to be the scholars' consensus view that while abusive discovery and abusive resistance to discovery are a problem in a small number of highly complex cases--typically in business litigation between large corporations--new limits on discovery applicable to all cases are unwise. In civil rights cases, mass tort cases, and other little-guy-suing-big-corporation cases, limits on discovery will systematically benefit the corporate defendants, Thomas and the other civil procedure scholars contend.

I share that normative sentiment, but it seems to me that the scholars quoted (at least insofar as their quotes appear in the article) have been duped by the Chief. The amendments to the rules do not, on their face, change much if anything.

Consider Rule 26. The Chief writes in praise of the new version of the rule: "The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case." Fair enough, but the unamended rule already made that point. The requirement that discovery requests be proportionate has been part of Rule 26 since 1983. It has been moved around from various sub-sections of the rule and subjected to minor wording changes from time to time since then. The only thing the 2015 amendment really did was to relocate it once again. As the 2015 Advisory Committee Notes explain:
Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.
So why does the Chief make a big deal out of this and other relatively minor changes in the Rules? In an email to a civil procedure listserv, my colleague Kevin Clermont perceived what the Chief was up to. Clermont agrees with the scholars quoted in the Times article that the drafters of the amendments intended to restrict discovery somewhat, but he notes (along lines similar to those I've just discussed) that the actual wording revisions do not appear to change much at all. Yet by saying that the Rules have changed, Clermont notes, the Chief Justice makes it so. As Clermont wrote to the list (quoted here with his permission), Chief Justice Roberts "is giving the lower courts their marching orders.  So now those rewordings and relocations likely will have a big effect. Roberts thereby amends the amendments."

In a sense, this is overkill on the part of the Chief Justice, who, as documented by Steve Burbank and Sean Farhang in a 2014 article in the U Penn Law Review, has been trying to limit plaintiffs' court access since his days as a young lawyer in the Reagan Administration. It's overkill because the Chief already had three opportunities to affect procedural reform.

First, as Chief Justice, he appoints the members of the Rules Advisory Committees, and can thus stack those committees with majorities sympathetic to his point of view (a point I make without intending to impugn the integrity of any of the people who serve, but simply to note the possibility). Second, as a member of the Court, he and his colleagues serve as gatekeepers who can--and occasionally do--block proposed amendments to procedural rules from going into effect. Third, again as a member of the Court, the Chief Justice has the opportunity to construe the rules' meaning in concrete cases. Although previous Courts have typically followed the plain meaning of the rules in rejecting restrictions on court access (for example in the Leatherman case under the late Chief Justice Rehnquist), the Roberts Court has been notable for its willingness to restrict court access by rejecting plain meaning as well as longstanding interpretations of the rules in favor of new restrictions, most notably in a pair of cases (Bell Atlantic v. Twombly and Ashcroft v. Iqbal) known collectively as Twiqbal.

Against this background, the Chief's fourth bite at the apple in his 2015 annual report may seem like no big deal. But that's not quite right. In each of the other contexts, the Chief must act with or through other people. The members of the committees in fact act on their own views; and when deciding whether to approve the committees' recommendations or in resolving concrete cases, the Chief is only one of nine votes. His end-of-year report, by contrast, expresses the Chief's unadulterated view. Given his long record of seeking to limit court access, it is hardly surprising that he chose to use this forum as a means to accomplish further cutbacks, but it is dispiriting nonetheless.