Needed: Access to the Law

It is time for the Congress to take on the Nixon-shaped Supreme Court before more doors to the courthouse are closed to all citizens and taxpayers except the rich and the super-rich.

In a series of decisions over the past year, Chief Justice Warren Burger and a majority of his associates seem determined to reverse the trend under the Warren court to make the courts more accessible to citizens and taxpayers.

On May 12, the Supreme Court held that citizen groups who won a case charging the Alaska pipeline corporations and the government with not adhering to federal law could not recover legal fees from defendants.

The citizens argued that under the old doctrine of performing as a “private attorney general,” they were entitled to such fees since they performed the enforcement task that was supposed to be done by the federal government

The Supreme Court disagreed, saying the courts should not award such fees in the absence of a specific federal statute authorizing them to do so. The justices did acknowledge, however, that they had the equitable jurisdiction to award such fees in what they considered appropriate cases.

In the area of consumer class actions, where similarly defrauded consumers sue a company, the Burger court has overturned lower court decisions that try to give consumers a chance to collect in one sum what it would be prohibitively expensive for them to collect individually.

In one instance, the Eisen case, the high court ruled that the individuals who brought the claims on behalf of six million consumers had to notify by mail each person of the lawsuit.

JUST MAILING individual notices to the 2.2 million consumers whose identities were known would cost $225,000. The average consumer does not have that kind of money.

Attorney Beverly Moore Jr., editor of Class Action Reports, describes Supreme Court decisions as “all but destroying any hope for the development of an effective federal consumer class action remedy under present laws.”

That means closing the door to consumers who cannot afford counsel to recover their $20 or $50 claim
from a company other than by a consumer class action.

It is in the category of “standing to sue” where the Burger court has revealed its fullest antagonism against giving citizens the right to use their own legal system.

The ancient “standing to sue” doctrine is the way governmental and wealthy interests have blocked the ordinary citizen from the courtroom door. Here is how the current Supreme Court applies this pernicious doctrine: A citizen by the name of Richardson read the Constitution and recognized that it requires all federal government budgets to undergo a public accounting for expenditures of federal monies.

He sued, demanding that this constitutional provision be applied to the CIA. The Supreme Court told him he could not even present his case in court because he had no “standing to sue.” That means 210 million Americans have no standing to bring such a case.

Who is left to challenge alleged constitutional violations in the courts? The attorney general? There have been times in our nation’s history when that prospect has been anything but reassuring. But even under “good” attorneys general, the final “standing to sue” right must be with the citizens of this country.

Other recent Supreme Court pronouncements, besides the Richardson case, are saying that taxpayer suits are going to have rough going just getting into court. More barriers to the people.

Throughout most of these decisions, the court is not claiming its judgments are rooted in the Constitution. That would be too presumptuous. What it is saying is that there are no laws compelling it to come out the other way. This is, in effect, shifting the stage to Congress.

So Congress should accept the challenge and enact legislation which will give citizens access to the law. Some of these proposals, like consumer class actions, have been pending for years without action.

Others, like a comprehensive “standing to sue” bill, will soon be introduced. Sen. John Tunney’s subcommittee on representation of citizen interests would be a good place to start.