Locking the Door to the Courthouse
Supreme Court Locks the Courthouse Door and Throws Away the Key!
Roberts Court Bars the People from Their Own Courthouses
Chief Justice John Roberts, and six other Supreme Court Justices have slammed shut the courthouse doors on ordinary Americans seeking to assert their fundamental rights.
This is only the latest effort by the Supreme Court to discourage resort to the courts for validation and vindication of individual rights and liberties.
In 1969 and 1970, I traveled across American college campuses, telling thousands of students:
“Litigation is civilization’s alternative to war and bloody revolution. As long as the courthouse door remains open, the streets should remain calm. Don’t just sit there and kvetch. Sue the bastards!”
The Supreme Court of the United States has just said I was wrong.
From Roe to Roberts: Eroding Civil Access
Since Roe v. Wade (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159) was overturned, the Supreme Court of the United States has systematically curtailed the rights of individual citizens to seek legal redress in federal court.
Rather than forthrightly denying access, the Roberts Court has used rulings like Lackey v. Stimmie (145 S. Ct. 659, 221 L. Ed. 2d 63, 2025 U.S. LEXIS 866) to make it economically impossible for small law firms and solo practitioners to represent ordinary citizens effectively.
The Federal Judiciary: A Club for the Privileged
Many federal judges have succumbed to the siren call of big business and “Big Law.” Only those with significant financial resources, economic power, or political influence can reliably access the courts — certainly not individual citizens trying to protect their constitutional rights.
The few public interest organizations that do litigate in the public interest are constrained by the need for constant funding. This limits the number of cases they can take, for fear of antagonizing large donors. These organizations attract top-tier lawyers or support from Big Law firms only when their cases align with the interests of corporate clients.
Fee-Shifting Sabotaged
To address this inequity, Congress enacted fee-shifting statutes to ensure that even when no damages were awarded, lawyers who succeeded in vindicating constitutional rights would be paid. Congress passed, and President Gerald Ford signed, the Civil Rights Attorney’s Fees Award Act of 1976 (48 U.S.C. § 1988) to allow prevailing parties to recover their attorney’s fees. Other statutes such as the Equal Access to Justice Act, the Clean Air Act, and Title VII of the Civil Rights Act of 1964 offered similar protections.
Yet in Lackey, Chief Justice Roberts — joined by Justices Thomas, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett — manufactured a doctrine of “judicial expediency” to deny attorney’s fees to individuals who prevailed in asserting constitutional rights. These cases are often brought by lawyers from small firms or solo practitioners.
Roberts claimed this served the “interests of judicial economy.” In plain English: judicial convenience matters more than constitutional rights.
He justified the ruling by claiming that “no court conclusively resolved their claims by granting enduring judicial relief on the merits,” hiding behind a distorted reading of the doctrine of mootness.
Now, even those who prevail are turned away, as the Supreme Court refuses to compensate their counsel for services rendered.
Mootness: A Judge’s Escape Hatch
Chief Justice Roberts and his six colleagues exploited the judiciary’s favorite loophole — mootness — to evade accountability for making a decision. When government agencies back down after lawsuits are filed, the Supreme Court pretended no wrong had occurred and gave the government agency a free pass to continue denying individual citizens their constitutional rights because they would not allow attorney’s fees.
This policy ignores both legal reality and legislative intent. The efforts of .these public spirited lawyers forced compliance. They earned just compensation for their work. Yet the Court’s new rule of expedience robs them of just compensation and mocks their public service. Chief Justice Roberts and his six colleagues only seem to respect those who charge their clients exorbitant rates for their time and always collect.
Civil rights litigation now depends not just on prevailing, but also on surviving judicial whim. Judges often retaliate against lawyers who dared to challenge them by denying fees for the services they performed.
A Judicial Travesty Worthy of Satire
This kind of judicial injustice is what inspired W. S. Gilbert to write The Mikado, a satire in which petty officials gleefully abuse power under the guise of maintaining order. One character, the Lord High Executioner, sings: “I’ve got a little list; they never will be missed.”
The same could now be said of the Court that decided Lackey. Injustice, when cloaked in precedent, becomes satire without humor.
Judges Above the Law
Federal judges are appointed for life and well-compensated. They enjoy research support from law clerks who were the most academically successful students from the most prestigious and elite law schools. Too many federal judges now believe that ordinary citizens belong in their courtrooms only as criminal defendants.
The Bankruptcy Court Scam
In bankruptcy cases such as that of the Roman Catholic Diocese of Rockville Centre, the judge allowed Jones Day and other Big Law firms to collect over $100 million in legal fees while survivors of childhood sexual abuse waited more than four years for justice.
Instead of prioritizing restitution to the victims, the Bankruptcy Judges encouraged procedural warfare, overstaffing, and overbilling while continuing to delay justice for the victims.
State Courts Are No Better
State court judges often reduce their workload by refusing to decide cases on the merits. In New York, where the judges are paid less than their federal counterparts, the failure of intermediate appellate courts to decide Freedom of Information Law (FOIL) cases promptly. Their practice of remanding reversed decisions back to the very judges who issued them, have turned summary proceedings into years of pointless litigation. This frustrates both citizens seeking transparency and legislators who crafted FOIL to deliver it quickly.
Judicial Appointments and Privilege
Our system of federal judicial appointments is deeply flawed. Ideological gatekeepers block reform and protect entrenched privilege.
Contingency Fees: The Equalizer
Contingent fee arrangements have enabled countless Americans injured by the negligence of others or defective products to obtain legal representation and recover compensatory and occasionally punitive damages. As long as the potential for a significant monetary recovery exists, lawyers are willing to take the risk. But when cases involve only symbolic or injunctive relief, they walk away.
The Judiciary Belongs to the People
The judiciary was never intended to be a private club for those with political influence or just another source of political patronage. The judiciary was never intended to be the liveried lackeys of corporate interests or the wealthy elite. The judiciary was never intended to become a home for partners from “Big Law” firms who have been successful rainmakers and have managed to bill and collect fees for beyond the value of their personal legal services.
The judiciary was created to serve the people.
The judiciary was established to protect the rights of individual American citizens and ensure that the law applies equally to all.
When courts slam the doors shut on citizens who prevail in court by denying payment to their attorneys, they abandon their constitutional purpose.
By making sure that attorneys willing to protect the constitutional rights of individual Americans cannot afford to file a lawsuit on their behalf, the judiciary has forsaken their purpose.
We must reclaim our courts. Congress must restore the force and intent of the statutes it passed. Citizens must demand that the federal judiciary be reminded of its constitutional role to uphold rights, not extinguish them. No court should be allowed to value its own convenience over equal justice for all.
Creative Commons License: This webpage and its contents are released under a Creative Commons Attribution-ShareAlike 4.0 International License. You are free to share and adapt this material, provided you give appropriate credit and share any derivatives under the same license.