False Narratives: Justice Scalia's Impact on Class Action Litigation


Linda S Mullenix

17 Class Action Litigation Report 568


Within a few weeks of Justice Antonin Scalia’s death on February 13, 2016 various media embraced the often-repeated refrain concerning the Court’s corporate bias, focusing on Justice Scalia’s prominent role in shaping the Court’s favorable predisposition in business cases. Nowhere was this theme more conspicuously trumpeted than in the commentators’ dissection of Scalia’s influence on the Court’s class action jurisprudence.

No less prominent a scholar than James Surowiecki, writing in the March 7, 2016 issue of The New Yorker magazine, expounded on this thesis (“The Financial Page: Courting Business”). Commenting on the Court’s conservative cohort, Surowiecki noted: “They have been skeptical of the use of class-action suits to achieve goals or enforce regulations.” Surowiecki quoted Vanderbilt law Professor Brian Fitzpatrick -- opining on two recent decisions upholding class action waivers in arbitration clauses -- that “they have the potential to literally wipe out the class-action lawsuit.”

This hyperbolic anti-class action narrative additionally provided the basis for an optimistic post-Scalia prediction. Again, quoting Fitzpatrick: “Scalia has done more than any other justice in making it difficult for consumers and employees to bring class-action suits. So his absence alone may make a difference.” Capping off this account, Surowiecki (and others) noted that because Scalia’s death had increased possible unfavorable outcomes for business, Dow Chemical had immediately settled a major class action lawsuit.

The problem with this narrative is that it simply is not true. It certainly is not nuanced. Justice Scalia was appointed to the bench in 1986. In the intervening thirty years, the Court decided approximately twenty-three class actions. In this universe of class action cases, well more than half of these decisions are fairly characterized as favoring plaintiffs’ interests in class litigation. If anything, the Court has been more pro-plaintiff in its class action jurisprudence than pro-business. Correlatively, it is simply is not the case that the Court consistently has favored corporate interests. Moreover, many of the Court’s class action cases were not decided as 5-4 split decisions, where Justice Scalia’s vote made a decisive difference. Instead, many of the Court’s class action decisions represent more unanimity than the prevailing narrative suggests.


Full Citation

Linda S. Mullenix, False Narratives: Justice Scalia's Impact on Class Action Litigation, 17 Class Action Litigation Report 568 (BNA) (May 27, 2016).