Professor Wasserman thinks that the Roberts Court will be known as a civil procedure Court.
The New Deal Court of Charles Evan Hughes is associated with the extension of government power and ultimately upholding the constitutionality of the New Deal;1 the Warren Court is associated with the expansion of individual liberties, especially racial equality, the freedom of speech, and criminal procedure;2 the Rehnquist Court is associated with federalism.3 Even if the Court never fully completes its doctrinal project,4 it targets a piece of the law and it develops that piece in a particular direction.
Entering the seventh term of the Roberts Court in October 2011, we see a Court newly engaged in an unexpected area—civil procedure and the Federal Rules of Civil Procedure. The Court’s membership now includes four justices whose backgrounds suggest particular solicitude for and perhaps keen interest in civil procedure: Chief Justice Roberts and Justice Ginsburg both were civil litigators, Ginsburg and Justice Kagan both taught Civ Pro, Justice Ginsburg has written extensively on civil procedure (both as a judge and prior), and Justice Sotomayor was a district court judge for six years, meaning she alone among the justices has worked with the Federal Rules and understands how they function on the ground. Over the past six terms, the Court has heard and decided more than twenty cases in core civil procedure areas, including pleading,6 summary judgment,7 relation back of amendments,8 personal jurisdiction,9 federal question jurisdiction,10 diversity jurisdiction,11 jurisdictionality,12 removal procedure,13 class actions,14 civil representation,15 arbitration of civil and civil rights claims in lieu of litigation,16 appealability,17 remedies,18 and Erie/Hanna.19 Several of these decisions have been significant and potentially far-reaching.
I’d say the Roberts court is very concerned with procedural type rules–of which the civil rules are prominent. We’ll see.