Closing the courthouse doors to civil rights plaintiffs.

On January 9, the Supreme Court heard arguments in the consolidated cases of Crawford v. Marion County Election Board and Indiana Democratic Party v. Rotika on the question of whether an Indiana election law requiring voters to show photo identification as a condition for voting is constitutional. (1) The issue has sparked a deep partisan dispute. Republicans claim that the requirement is needed to prevent voter fraud. Democrats argue that many Democratic voters--especially African-Americans and Latinos--would be disproportionately turned away from the polls.

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During oral argument, several of the justices, led by Justice Antonin Scalia, questioned whether the challenge to the voter-identification law should be decided at this time. Their questions suggested that no one yet had standing to sue because the law had not been implemented and no one had been denied the opportunity to vote.

These justices seemed to be saying that the law could not be challenged until after it was used in an election. One reporter who follows the Court indicated that this may reflect the views of a majority of the justices. (2)

It is too soon to know what the Court will do in Crawford, but the justices' questions at oral argument reflect a major theme of the Roberts Court: closing the courthouse doors to litigants, especially in civil rights cases. This aspect of the Court's last term--although largely overlooked--creates a sense that the Roberts Court is likely to use procedural devices much more aggressively than the Rehnquist Court to keep plaintiffs out of federal court. Consider a few examples of decisions from last term.

Standing

One way to close the courthouse door is to deny plaintiffs standing to sue. This is exactly what the Court did in Hein v. Freedom from Religion Foundation. (3) Hein presented the issue of whether taxpayers had standing to challenge the Bush administration's use of federal funds for its Faith-Based and Community Initiatives Program, which seeks to channel government monies to faith-based institutions, such as churches, synagogues, and mosques.

Generally, taxpayers do not have standing to challenge government funding actions as unconstitutional. (4) The only exception was articulated in Flast v. Cohen, where the Court held that taxpayers have standing to challenge government expenditures as violating the Establishment Clause of the First Amendment. (5)

But in Hein, the Court distinguished Flast and, by a 5-4 vote, held that taxpayers did not have standing to challenge the Bush administration's actions. Justice Samuel Alito, who announced the judgment of the Court, explained that Flast was a challenge to expenditures made under a federal statute, whereas the spending in Hein came from general executive funds. He said that taxpayer standing exists to challenge the former, but not the latter, as violating the Establishment Clause.

This distinction persuaded only two of the other eight justices. Although Scalia and Justice Clarence Thomas concurred in the judgment, they also argued that Flast should be overruled. Justice David Souter wrote a dissent in which he contended that there was no meaningful distinction between Hein and Flast and that taxpayer standing should be allowed. Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer joined in that dissent.

The latter six justices clearly are right. It should make no difference whether it is Congress or the president funding a program; both branches of government are equally constrained by the Establishment Clause. And the dollars come from the same place, the federal treasury, so there is no meaningful reason for allowing taxpayer standing to challenge spending in one instance but not the other. Yet, the effect of Hein is to make it much harder for plaintiffs to get into court to mount these challenges to the government's spending decisions.

Filing deadlines

A case that received few headlines but that also reflects the closing of court house doors was Bowles v. Russell. (6) In Bowles, a criminal defendant asked a federal district court judge for an extension of time to file a notice of appeal from the denial of his petition for a writ of habeas corpus. (7) The judge gave the defendant a 17-day extension, and the defendant filed a notice of appeal within this period. The State of Ohio argued in the Sixth Circuit that the claim was time-barred because the judge only had authority to grant an extension of up to 14 days. The Sixth Circuit agreed and ordered the appeal dismissed.

The Supreme Court, in an opinion written by Thomas, agreed with the state that the statute allowed for extensions up to 14 days only, so the notice of appeal was time-barred. Moreover, the Court expressly overruled earlier decisions that held that exceptional circumstances may excuse an untimely filing of a notice of appeal. (8) Therefore, even though the defendant had followed the judge's order and even though his appeal would have been allowed under prior Supreme Court decisions, he was barred from bringing an appeal.

In a powerful dissent, Souter declared: "It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch." (9)

Surely Souter is right. A person should not be denied his or her day in court because the trial judge made a mistake.

Statutes of limitations

Another way to keep cases out of court is by making it difficult or impossible for plaintiffs to meet statutes of limitations. This is what happened in Ledbetter v. Goodyear Tire & Rubber Co., where the Court narrowed the ability of employees to sue for pay discrimination under Title VII of the Civil Rights Act of 1964. (10)

In a 5-4 decision, the Supreme Court held that the statute of limitations for pay discrimination claims under Title VII begins running at the time when the employee's pay is set. The Court expressly rejected Lilly Ledbetter's argument that each additional paycheck was a new discriminatory act that separately triggered the statute of limitations. Thus, her disparate-treatment claim, based on her employment over a nine-year period, was time-barred. (11)

The Court's holding in Ledbetter is likely to be a significant obstacle for many pay discrimination claims under Title VII, because most employees don't know that they are being paid less than others at the time their salaries are set. It will be critical for plaintiff lawyers to argue that their clients could not have discovered the discrimination at that time and that the statute of limitations was thus tolled.

Courts should be receptive to this argument because generally there is equitable tolling of a statute of limitations until the plaintiff reasonably could have discovered his or her injury. Courts then must decide how to determine when an employee should reasonably have known of the salary discrimination, especially if the workplace is one where rules or customs prevent discussion of salaries. (12)

These cases illuminate an emerging theme: The Roberts Court is likely to continue to restrict who gets into federal court.

Decisions limiting access usually don't produce the headlines of cases decided on the merits, but civil rights can be effectively undermined just by making sure that courts cannot vindicate them.

This term's cases, such as the challenge to the Indiana law requiring voters to supply photo identification at the polling place, will provide an indication of how much further the Roberts Court is willing to go to close the doors to the federal courthouse, especially for civil rights plaintiffs.

Notes

(1.) 484 F.3d 436 (7th Cir. 2007), cert. granted, 128S. Ct. 33 (2007).

(2.) Linda Greenhouse, Justices Indicate They May Uphold Voter ID Rules, N.Y. Times A1 (Jan. 10, 2008).

(3.) 127 S. Ct. 2553 (2007).

(4.) See e.g. United States v. Richardson, 418 U.S. 166, 171-74 (1974); Schlesinger v. Reservists Comm. to Stop the Way; 418 U.S. 208, 227-28 (1974).

(5.) 392 U.S. 83 (1968).

(6.) 127 S. Ct. 2360 (2007), overruling Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962), and Thompson v. INS, 375 U.S. 384 (1964).

(7.) 28 U.S.C. [section]2107 (2006); Fed. R. App. P. 4(a)(6).

(8.) Bowles, 127 S. Ct. at 2366.

(9.) Id. at 2367 (Souter, J., dissenting).

(10.) 127 S. Ct. 2162 (2007).

(11.) See Erwin Chemerinsky, The Court Deals a Blow to Pay Discrimination Plaintiffs, TRIAL 60 (Sept. 2007), www.justice.org/Publications/trial/ 0709/sct.aspx.

(12.) The Court in Ledbetter expressly did not decide the question of how to determine when an employee should have known of the pay disparity. 127 S. Ct. at 2177 n. 10 ("We have previously declined to address whether Title VII suits are amenable to a discovery rule. Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue." (citation omitted)).

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law and Political Science at Duke University. He may be reached at [e-mail].