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The Roberts Court and the Civil Procedure Revival

Howard M. Wasserman

Introduction

Different iterations of the Supreme Court of the United States, identified with the Chief Justice, have different doctrinal projects and agendas, a part of the law in which it takes a particular interest and in which it moves and develops the law. The New Deal Court of Charles Evan Hughes is associated with the extension of government power and the constitutionality of the New Deal;[1] the Warren Court is associated with the expansion of individual liberties, especially racial equality, the freedom of speech, and criminal procedure;[2] the Rehnquist Court is associated with federalism.[3] Even if the Court never fully finishes its doctrinal project, it targets a piece of the law and it develops that piece in a particular direction.

What a particular Court cares about may change over time. And it may not always be clear, especially in the early years of a new Court with a new Chief. John Roberts was sworn in as Chief Justice in September 2005 and three other members have joined the Court since then.[4]

As we approach the seventh term of the Roberts Court, we see strong signs of a Court engaged in an unexpected area—the Federal Rules of Civil Procedure and civil procedure more generally. Over the past six terms, the Court has heard and decided numerous cases in core civil procedure areas, including pleading,[5] summary judgment,[6] relation back of amendments,[7] personal jurisdiction,[8] subject matter jurisdiction,[9] removal,[10] standing,[11] class actions,[12] and Erie/Hanna.[13] In fact, the Court now includes four members whose backgrounds suggest solicitude for and perhaps keen interest in civil procedure: Chief Justice Roberts and Justice Ginsburg both were civil litigators, Ginsburg and Justice Kagan both taught Civ Pro, and Justice Sotomayor was a district court judge for six years, meaning she alone among the justices has worked with the Federal Rules on the ground.

Supreme Court development of the law of civil procedure is welcome. While the lower courts do an admirable job in creating, developing, and applying procedural law, the high court is a necessary source of federal uniformity and, we hope, clarity. Of course, having civil procedure as a doctrinal project will not draw the attention or ire of the public and the popular media; do not expect public calls to impeach John Roberts over the scope of Rule 8. Indeed, it may not draw the attention of many beyond the civil procedure professoriate, and even then only with a modicum of sarcasm. In June, Justice Kagan read her decision in Smith v. Bayer Corp. (which dealt with the preclusive effect of a class certification decision and the Anti-Injunction Act) from the bench, introducing it as a “complicated procedural ruling;” one legal blogger translated this as "if you understand anything I say, you have a law degree AND you had your cup of coffee."[14]

But if civil procedure and the Federal Rules is to be the Roberts Court’s jurisprudential project, it is worth examining the Court’s early activity in this area, both to see and understand the trend that has been developing and to predict where it might go in the coming terms. This essay first examines some themes or ideas that show up in the recent decisions on the subject. It then considers the Court’s actions relative to the other actors and procedures in civil rulemaking, namely Congress, lower federal courts, and the Advisory Committees under the Rules Enabling Act.

I. Organizing Themes in the Civil Procedure Revival

Some themes have developed in the Court’s early cases that provide some perspective on the new developments in civil procedure. This do not necessarily link all of the cases into a coherent whole, but they do provide some ideas around which to organize the Court’s activity.

First, it is fair to call the Court’s sudden interest in procedure a “revival,” coming as it does after a significant lull in procedure cases on the Court’s docket during the Rehnquist Court. This makes the recent uptick in procedural decisions so striking. When the Court last term decided companion personal jurisdiction cases, it marked the first decision from the Court on personal jurisdiction in more than twenty years.[15] For perspective, Justice Souter joined the Court in fall 1990 (five months after Burnham) and served for nineteen years[16] and never decided a personal jurisdiction case. There were similar gaps in other areas—the Court decided its first case on Rule 15(c) relation back in almost twenty years (and the first since the rule was amended in 1991)[17] and its first direct case on the Erie/Hanna doctrine in almost fifteen years.[18] The Court even has resolved long-standing statutory issues. In 1958, Congress amended the diversity jurisdiction statute to define a corporation’s citizenship, in part, as its principal place of business; in 2009, the Court for the first time addressed and resolved the meaning of that term.[19]

Second, some of the Court’s efforts have aimed to clean up doctrinal confusion or problems created by its predecessors. One such project has been the elimination of “drive-by jurisdictional rulings.” These are decisions in which a legal rule has been labeled as jurisdictional only through “unrefined” analysis without rigorous consideration of the label’s meaning or consequences.[20] The Court has explicitly retreated from its own admittedly “profligate” and “less than meticulous” use of the word and made a deliberate, concerted move towards greater “discipline” defining what is jurisdictional and to curtail such drive-by rulings.[21] Some justices have even argued that these earlier rulings are not entitled to full precedential effect.

And the Court obviously wants lower courts to follow that lead in avoiding this long-standing confusion. In some cases, it has granted cert specifically to undo a lower-court’s erroneous treatment of an issue as jurisdictional. But it also has reached out to announce the proper characterization of a rule, even where its jurisdictional or non-jurisdictional nature was not at the heart of the case or even contested by the parties, simply because the Court believed the lower court had mischaracterized the rule.[22] The Court is willing to correct what it views as doctrinal missteps in the lower courts, even tangentially.

Third, the Court has made significant theoretical and doctrinal pronouncements, often producing significant theoretical and doctrinal shifts. The most-discussed example is pleading, which has generated a scholarly cottage industry. The Rehnquist Court’s two most recent statements on Federal Rule of Civil Procedure 8(a)(2) and pleading—in 2002 and 1993—had reaffirmed the Court’s historic decision in Conley v. Gibson, rejected heightened or fact pleading outside of fraud, and accepted that a complaint is sufficient unless it “appears beyond doubt that the pleader can assert no set of facts that would entitle him to relief.”[23] True, the lower courts had frequently required plaintiffs to plead more and more-specific facts—so much so that Chris Fairman labeled notice pleading a “myth”[24]—but the Supreme Court always pushed back against this pendulum swing.

Then came Twombly in 2007 and Iqbal in 2009. Together, the two cases gave the “no set of facts” standard its “retirement,”[25] required that a pleading contain sufficient facts, pled in a non-conclusory manner, to enable a judge, applying her own common sense and experience, to conclude that it is plausible that a violation of the plaintiff’s rights had occurred if those facts are true.[26] Part of what made Twombly (and subsequently Iqbal) so surprising is that it came from nowhere, with an entirely new concept—nonclusoriness and plausibility—that had not appeared in any pleading cases from any court.[27] It also represented a reversal from the prior doctrinal dynamics between the Supreme Court and the lower courts; rather than rebuffing lower courts when they pushed pleading standards upwards, the Court finally adopted the higher standards that some lower-court judges had imposed (and reversed two more-permissive decisions by the lower courts in the process).[28]

McIntyre hinted that we could see a similar theoretical shift in personal jurisdiction. In finding no jurisdiction over the defendant, Justice Kennedy’s plurality opinion repeatedly spoke about personal jurisdiction in structural terms of judicial power, sovereignty and sovereign authority, submission by the defendant (through his acts) to the power of the sovereign, and the invalidity of a “judgment rendered in the absence of authority.”[29] But this marks at least a rhetorical (if not substantive) departure from International Shoe, which has been grounded in due process concerns for foreseeability, reasonableness, and fundamental fairness, not sovereignty and the “reach” of a sovereign’s power.[30] The new authority rhetoric makes personal jurisdiction sound more like subject matter jurisdiction, with its focus on the court’s root structural adjudicative authority, generally not waivable, over a case. It remains to be seen whether this is rhetoric or, if it is more than rhetoric, what effect it has. The McIntyre plurality was not alone in hinting at doctrinal change. Justice Breyer wrote a concurring opinion expressing uncertainty as to how the current analytical scheme works (or does not work) in light of modern technology, communications, travel, and commerce—suggesting that he, too, would be open to reconsidering and altering the personal jurisdiction framework if presented with a more modern case.[31]

We also saw hints of a different doctrinal shift in Good Year, where a unanimous Court appeared to narrow, if not outright reject, general “doing business” jurisdiction. That doctrine provided that a business entity could have continuous and systematic business contacts with a forum that, if substantial enough, could subject it to jurisdiction in that forum for all purposes. And several lower courts, including the lower court in Goodyear, had carried that doctrine pretty far.[32] But the Supreme Court rejected this “sprawling” view of general jurisdiction, drawing a sharp line between general and specific personal jurisdiction and seeming to limit the former to the “paradigms” of domicile, place of incorporation, principal place of business, and, perhaps, states in which the defendant has offices or has registered to do business.[33]

Fourth, and relatedly, the Court continues to paint in minimalist strokes, rendering narrow decisions that handle only what is necessary to resolve the case. This is not entirely surprising. Both Roberts and Samuel Alito (who joined the Court in OT 2005[34]) advocated such minimalism in their confirmation hearings and had carved out uniquely narrow vies in other cases.[35] Judicial minimalism is often criticized for failing to provide sufficient guidance to lower courts and other actors, leaving them to read between the lines, at greater cost to those other actors.[36] That failing has played out in the Court’s recent civil procedure cases.

For example, Twombly initially resolved as many questions as it left: Did it apply to all cases or only to antitrust cases?[37] Did the court impose heightened or fact pleading, something it explicitly disclaimed?[38] Was Conley truly overruled or was Twombly simply an application of Conley, less the overstated (and arguably misunderstood[39]) no set of facts language? Iqbal came along two years later and resolved some of those questions—plausibility was the new standard for Rule 8(a)(2) and it definitely applied beyond antitrust cases.[40] But Iqbal also more explicitly brought to the fore the policy justifications for the new pleading standard—protecting certain high-ranking government defendants in certain cases from the overweaning costs and burdens of discovery.[41] That leaves lower courts to figure out whether Iqbal and Twombly’s stricter plausibility requirement should apply in cases that do not implicate those concerns—non-discovery-intensive cases or cases not involving qualified immunity and sensitive, high-ranking government officials.[42] Lower courts also have had to determine whether plausibility applies to other pleadings, such as affirmative defenses, or other issues in pleadings, such as jurisdictional allegations.[43]

Minimalism’s gaps are exacerbated by the Court’s failure to achieve a majority in several cases. Consider McIntyre again. In Asahi, the Court had left open whether a defendant established sufficient minimum contacts with a forum simply by placing a product into the stream of commerce knowing or expecting that it could end up in the forum (as four justices argued) or whether the defendant must do something in addition to intentionally serve or reach the forum (as four justices argued).[44] That dispute between “stream” and “stream -plus” rattled around in the lower courts for more than twenty years.[45] The New Jersey Supreme Court had discussed and resolved this long-standing debate, adopting “stream of commerce” as the approach more consistent with the due process theory underlying personal jurisdiction.[46] The expectation when the Court took the case was that it would finally resolve the debate, but it did not. Four justices again adopted stream-plus, explicitly and sharply rejected putting a product into the stream of commerce as sufficient contacts, calling Justice Brennan’s stream view “inconsistent with the premises of lawful judicial power.”[47] But Justices Breyer and Alito concurred in the judgment and declined to resolve the debate, believing it unnecessary to resolve a case in which the absence of contacts was clear.[48] After waiting twenty years to hear a personal jurisdiction case and taking a case that expressly presented the stream/stream-plus debate, the Court left the issue unresolved. Of course, courts may take cues from the emphatic language of the plurality opinion and its recasting of the doctrine in sovereign terms and move towards stream-plus. But that just brings the lower courts back to tea leaves.