In what is rapidly becoming a trend, the Supreme Court denied certiorari in yet another class action (this time Martin v. Blessing, but one Justice wrote an accompanying opinion to signal where the Court may come out should the issue arise again.
Martin is one of several cases in which SDNY Judge Harold Baer imposed a requirement that class counsel representing a class in a large-scale settlement must include female and minority members on its team. (For more, see here and here.)
In this case, CCAF’s Ted Frank filed an appeal challenging the practice on Constitutional grounds.
As Justice Alito’s accompanying opinion states, the Supreme Court denied certiorari because
The uniqueness of this practice weighs against review by this Court, the meaning of the Court’s denial of the petition should not be misunderstood.
Justice Alito begins by stating that he is "hard-pressed to see any ground on which Judge Baer’s practice can be defended" on Constitutional grounds. Nonetheless, he engages in the analysis of whether the order meets with the requirements of Rule 23(g).
"Whether or not Martin suffered injury in fact in the Article III sense, he unquestionably has a legitimate interest in ensuring that class counsel is appointed in a lawful manner. The use of any criteria not set out specifically in Rule 23(g) or "pertinent to counsel’s ability to fairly and adequately represent the interests of the class" creates a risk of injury that a class member should not have to endure. And class members have a strong and legitimate interest in having their attorneys appointed pursuant to a practice that is free of unlawful discrimination. If a district judge had a practice of appointing only attorneys of a particular race or gender, would an appellate court refuse to entertain a class member’s objection unless the class member could show that the attorney in question did a poor job?"
(Emphasis added.) Ultimately, Justice Alito agreed with the denial of certiorari, since the Supreme Court is not a "court of error correction." But he adds this ominous postscript:
If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted.
I imagine Ted is keeping a folder …