For the most part, today's intense debate over the proper role of the courts—that is, the debate over judicial activism—focuses on a small number of Supreme Court decisions. This is unfortunate, because the lower federal courts decide far more seemingly unremarkable civil cases that matter a great deal for understanding when judges overreach. Unlike the cases that capture everyone's attention, these cases turn not on vexing issues of constitutional interpretation, but rather on how the facts of the lawsuit should be weighed—and on who should weigh them.
In our legal system, juries, not judges, are supposed to decide the facts. That's what the framers requiredwhen they adopted the Seventh Amendment, which guarantees the right to trial by jury in civil cases. Yet in a series of recent rulings, lower-court judges have been taking contested factual issues out of the hands of juries and substituting their own judgments instead. Have they been big-footing juries more than usual lately? No one has done a systematic survey, so it's hard to say. But there are enough cases in which this has happened to take note. Also noteworthy is that the judges engaged in slighting juries are not the liberals so often accused of activism, but conservatives, many of them appointed by George W. Bush.
Here's the legal standard that ensures juries will decide the facts of a case: Trial court judges must take the plaintiff's evidence as true and must let a case go to the jury unless, given that favorable view of the evidence, there is no way any reasonable juror could find for the plaintiff. Appellate judges must ensure that trial judges abide by this rule. In a string of recent cases, however, some appeals-court judges have voted to allow trial courts to grant "summary judgment"—or dismiss a case before trial—even though a jury might reasonably see a violation of the law in the evidence.
The problem appears to be acute on the 8th Circuit U.S. Court of Appeals, where nine of the 11 active judges are Republican appointees, seven of them chosen by Bush. Eighth Circuit rulings granting summary judgment despite facts that might dispose a jury to favor the plaintiff have provoked a number of recent dissents and, but for the court's homogenous composition, might have provoked more.
In the last nine months, Senior Judge Donald Lay, appointed by President Lyndon Johnson, has dissented in four cases on the grounds that his colleagues prematurely threw out claims of wrongdoing in the workplace. In one of them, the majority concluded that a black Wal-Mart employee whose supervisor routinely used racially offensive language, including repeatedly calling him a "lawn jockey," didn't present enough evidence to get his claims of racial discrimination to a jury. Lay observed that a reasonable jury could have easily gleaned from the evidence that the employee had contended with an intolerable work environment and had been fired because of his race. In another case, which involved whether a worker's injury qualified her for workers' compensation benefits, Judge Lay criticized not just the majority's dismissal of the worker's claim, but what he viewed as a larger problem: "Too many courts in this circuit, both district and appellate, are utilizing summary judgment where issues of fact remain."
Conservative appointees on other appeals courts have been similarly quick on the summary judgment trigger (examples are here, here, and here). Two judges on a 4th Circuit panel ruled that a University of North Carolina soccer player named Melissa Jennings didn't merit a trial on a claim of sexual harassment. Jennings' coach had frequently singled out his players, including Jennings, with obscene, demeaning comments about their physical attributes and sex lives. The dissent argued that a jury might have seen this as a "team environment" that "was persistently degrading and humiliating" to Jennings and other players. But the majority saw nothing more than "sexual banter," "vulgar language," and "second-hand harassment." The ruling may be too mucheven for the conservative-dominated 4th Circuit, which threw it out and is reconsidering whether a trial is warranted.
Other appeals-court judges have undermined the right to trial by jury in a different way: by overturning jurors' verdicts. The rules of civil procedure strongly discourage the tossing of verdicts, allowing it only when a judge decides that a reasonable jury could have had absolutely no evidentiary basis for its conclusion. But on the 5th Circuit, Judges Edith Clement and Harold DeMoss, both Republican appointees, rejected a verdict in favor of an offshore-drilling rig worker who sustained a severe on-the-job back injury, reasoning that the jury should have credited the drilling company's defense. In dissent, the third judge on the panel, Clinton appointee Carl Stewart, accused his colleagues of "usurp[ing] … the jury's function." The majority then withdrew their opinion and issued a new one dressing up their jury-snubbing with a little more law. Stewart dissented again. When the full 5th Circuit refused to re-hear the case, Stewart, now joined by five colleagues, called out the panel majority for using "chameleonic legalisms" to justify "an audacious exercise in violating the Seventh Amendment."
Do conservative judges' decisions to supplant jury determinations expose an effort, perhaps subconsciously, to rid the courts of litigation in the service of curing a culture they see as burdened with "too much law?" Maybe. But even if you don't think judges' personal views color these decisions, you might recognize some paradoxes in these rulings.
Disrespecting the historic responsibility of the jury doesn't match up with the prototype of the modest jurist who conservatives say they embrace. Nor does it jibe with their championing of "constitutionalist" judges who adhere to the original understanding of our founding document. James Madison, after all, called the jury-trial guarantee "one of the best securities of the rights of the people" and wrote that it "ought to remain inviolate." Few things embody the will of the people like a jury verdict. And few things usurp it like displacing the jury from its fact-finding role.
Consistent with procedural rules, judges may, of course, legitimately weed out unfounded claims and step in to correct egregious juror mistakes. But they shouldn't commandeer the jury's constitutional authority by closing the courthouse doors. The party who files suit may lose. But it's the jury that should ordinarily make the call.