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 ‘plain 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.
The week before, another lawyer said that ruling against his position “would unleash a flood of suits by prisoners.” A lawyer on the other side responded: “If adopting a broader interpretation here would open the floodgates, the floodgates are already open, and they have been for 40 years in most of the country. And we haven’t seen a flood.”
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.”
In an article to be published in September in The University of Chicago Law Review, Professor Levy proposes a subtle taxonomy of floodgates arguments, approving of ones protecting executive branch officials and interpreting statutes to track Congress’s purpose. Those limits, she writes, are grounded in the separation of powers. She is also sympathetic to limits that affect the relationship between state and federal courts.
But about half of the cases are based on a more self-interested concern: the fear that federal courts will be inundated with new cases and judges may have to work too hard to keep up with them. The metaphor gained currency, Professor Levy writes, as many judges and law professors in the 1970s grew concerned that caseloads in the federal courts were becoming unmanageable. Justice Stevens said as much in a 1978 opinion, observing that appeals court judges were “struggling desperately to keep afloat in the flood of federal litigation.”
There are, to be sure, some kinds of lawsuits that are likely to be a waste of judicial time. As Justice Robert H. Jackson wrote in a 1953 concurrence, there was good reason to worry about “floods of stale, frivolous and repetitious petitions” from prisoners challenging their convictions.
“It must prejudice the occasional meritorious application to be buried in a flood of worthless ones,” he wrote. “He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”
Congress can certainly erect barriers against such problems, and it has. The Prison Litigation Reform Act of 1995, for instance, cut back on, in Justice 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, Professor 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.”
The Supreme Court, as it happens, decides cases involving actual floods surprisingly often. In January, it ruled in a case involving the Los Angeles County Flood Control District.
And in December it said that some real-life floods caused by the government may amount to a taking of property requiring compensation. Not to worry, Justice Ruth Bader Ginsburg wrote for the court. “Today’s modest decision,” she said, “augurs no deluge of takings liability.”