WASHINGTON — February was flood season at the Supreme Court.
On Feb. 20 alone, three justices used flooding as a metaphor in talking about the consequences of the court’s rulings. Justice Samuel A. Alito Jr. wrote that allowing some lawsuits from prisoners would not “prompt an unmanageable flood of litigation.” Justice Antonin Scalia countered that there was indeed a good reason to worry about “a flood of litigation.” Justice Stephen G. Breyer, in a second decision that day, said allowing the correction of plainly erroneous rulings late in the game “will not open any ‚Äòplain error’ floodgates.”
Lawyers who argued before the court were using the same terms. On Feb. 27, one assured the justices that “we haven’t seen the floodgates opened” after a lower court allowed some kinds of class actions.
In real life, floods are bad. But the metaphor of a flood in the context of litigation obscures more than it illuminates. If a legal theory is sound, is it a problem if it produces too much justice?
Marin K. Levy, a law professor at Duke University, has been tracking the rise of all of this talk of floods. “It’s a huge uptick,” she said.
“This is clearly on their minds,” she said of the justices, “and it’s something that should give us pause.”
She found about 60 “explicit floodgates cases,” meaning cases using that term and its cousins. The first was in 1908. They reappeared in the 1940s and picked up in the 1970s. Nearly half are from 2000 or later, and 14 are from the last four terms.
The cases vary in significance, of course, but some are major. The Supreme Court’s reluctance to consider whether voting districts gerrymandered for partisan ends may ever violate the Constitution, Justice John Paul Stevens wrote in a 2004 dissent, “seems driven in part by a fear that recognizing such claims will give rise to a flood of litigation.”
Congress can certainly erect barriers against such problems, and it has. The Prison Litigation Reform Act of 1995, for instance, cut back on, in Alito’s words in a 2006 opinion, “a flood of prisoner litigation in the federal courts.” But allowing judges to close the courthouse door to a class of cases on the ground that they create too much work is, Levy writes, “deeply troubling,” for two reasons.
One is that judges are not particularly good at predicting the consequences of their decisions. The other is that this sort of thinking is not grounded in the law.
“Barring a true flood of tens or hundreds of thousands of cases,” she wrote, “no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law.”