Apparently, it’s more insidious than I thought. I spent the weekend at the American Constitution Society conference listening to some very intelligent people make very astute observations about the current and future state of American law. A lot of people were eager to make observations about the cutbacks in habeas corpus rights and the recent school integration case. However, I am going to write about something a bit less alluring- procedure. I was struck by a comment Linda Greenhouse, who covers the Supreme Court for the New York Times, made. She remarked that the last term was exceptional in that the Supreme Court in a series of cases reduced the ability of people to access judicial relief. In these cases, the court undermines the individual’s ability to seek judicial redress for wrongs.

Two cases in particular point in this jurisprudential direction. In Ledbetter v. Goodyear, the Supreme Court held that the statute of limitations for employment discrimination cases starts when the illegal behavior starts. In other words, you must bring you suit within 180 or 300 days from the inception of the discrimination. In this case the illegal act was the issuance of disparate paychecks to Ledbetter and her male co-workers. Despite the fact that Ledbetter filed her lawsuit within 180 days of the discrimination, she was barred from compensation because it had occurred for 19 years. The court’s ruling was in opposition to the Equal Employment Opportunity Commission (EEOC) amicus brief in support of Lily Ledbetter.

Another case, Bowles v. Russell illustrates a similar vein of decision. In that case, a judge awarded a 17-day grace period on a filing deadline for a federal appeal. The lawyer complied with this deadline, but the appeal was later barred because the court found that the judge erred in his order. In barring the claim, the court uses procedure to deny access to the courts. The flagrancy of this effort led to a scathing dissent by Justice Souter.

The judicial system relies on contributions from every citizen of this country. The courts are funded through the tax dollars of the rich and poor. Juries are supposed to represent a cross-section of the population (although, less wealthy members bear the brunt of the hardship of missing work). Each member of the country is theoretically afforded the same access to the system of which they are a part. Yet these decisions reflect an effort to limit the access of individuals. They favor closed courts guided by technicalities that inevitably favor parties with more resources and familiarity with navigating the institution. It’s more insidious than I thought.