The Roberts Court’s record on access to justice is more mixed than some critics recognize, and a greater (if rarely discussed) problem is that the economically disadvantaged lack equal access to justice in the United States, argued UNC law professor Gene Nichol in his keynote address at the Case Western Reserve Law Review symposium on “Access to the Courts in the Roberts Era.” While the Roberts Court has shown greater sympathy for federal preemption, refused to find implied causes of action in federal statutes, shrunken the availability of habeas corpus, turned away from facial challenges to federal statutes, and strictly enforced statutory limitations on suits, Nichol noted that the Roberts Court has expanded access to justice in other areas. In the enemy combatant cases, particularly in Boumediene, the Court bravely rejected the political branches’ attempt to limit detainees’ habeas claims, and cleared the way for a wave of gun rights lawsuits with D.C. v. Heller.

Turning to standing, an area in which Nichol has written several important articles, he noted that the Roberts Court has done relatively little to curtail Article III standing. In Hein the Court refused to overrule Flast v. Cohen (even if it “treated it rudely”), and expanded the ability of states to sue in federal court in Massachusetts v. EPA. This Court’s failure to limit standing is perhaps notable because it appears to be an issue of great concern to the Chief Justice. In 1993, Roberts wrote an article defending the Lujan decision (and, interestingly enough) disagreeing with Nichol’s work in the area. Roberts had argued that the injury requirement was a politically neutral limitation on jurisdiction, limiting conservative and liberal interests alike.

Nichol takes a different view, arguing that the Court has failed to develop and impose an Article III standing requirement in a neutral fashion. Application of Article III’s requirements has become little more than an “opaque labeling exercise.” Instead, the Court repeatedly goes through a “Bush against Gore shuffle” in which the standing requirements are loosened or tightened depending on the justices’ sympathy for the parties and views of the merits. In Nichol’s view, environmental plaintiffs and those challenging race-conscious government decisions have a relatively easy time satisfying standing requirements, while other plaintiffs with similarly diffuse or generalized concerns do not. In short, Nichol argued, standing, in practice, is not a neutral or apolitical limit on federal court jurisdiction.

Nichol closed suggesting that most discussions of “access to justice” overlook some of the broader systemic problems faced by the economically disadvantaged. No matter what the Court may do on standing, the poor will continue to face greater obstacles in bringing their claims forward. Insofar as wealth can purchase greater legal talent – and that the ability to hire higher priced lawyers influences legal outcomes – Nichol suggests that lawyers and academics should have greater concern for the underlying inequities of the legal system. Expanding standing for elite environmental interests may be all well and good, but it does not address what Nichol believes is the greater “access to justice” issue.