The authors of Uncertain Justice: The Roberts Court and the Constitution have dubbed the Roberts Court the “anti-court Court,” because, as David Cole observes, “At every stage, it has favored rules that make it more difficult to pursue justice in the courts”:
It has imposed higher “pleading” standards on complaints, ensuring that more lawsuits can be dismissed by trial judges at the threshold, before plaintiffs are able to obtain discovery from defendants. It has upheld contract provisions that require consumers and employees to pursue remedies against corporations through arbitration favored by employers rather than in court. It has presumptively barred classwide arbitration, even where that means that some forms of illegal conduct will never be remedied. … The Roberts Court has also made it virtually impossible to bring class actions in federal court against employers based on unwritten discriminatory practices (and what employer these days has a written practice of discrimination?). And last term, it declined to hear a challenge to a secret NSA spying program, on the Catch-22 reasoning that plaintiffs had to show that they were actually under surveillance, a showing they could not make precisely because the program was secret.
Because these decisions involve technical questions of civil and criminal procedure, they do not receive the public attention given to the Court’s highly publicized constitutional cases. But they are far more consequential, because they close off the courts to an almost infinite variety of legal wrongs.
The Dish 