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September 7, 2017Download PDF

Onward And Trumpward: The Future Of The Seventh Circuit

With the retirement of the renowned Richard A. Posner from the United States Court of Appeals for the Seventh Circuit on Saturday, the federal appellate court in Chicago now stands at a crossroads. Like former Supreme Court Justice David Souter, Posner was appointed by a Republican President (Bush and Reagan, respectively) in the hopes that his judicial philosophy would exhibit a right-of-center bent. This was not always the case, with Judge Posner penning some of the most influential Circuit court decisions of the last few years, including a 2014 decision, Baskin v. Bogan, striking down Indiana and Wisconsin’s ban on gay marriage.

Judge Posner’s retirement now leaves four vacancies at the Seventh Circuit. President Donald Trump so far has nominated Notre Dame Law professor Amy Coney Barrett, who has written in support of the late U.S. Supreme Court Justice Antonin Scalia’s brand of staunch originalism in interpreting the Constitution, and Michael B. Brennan, who has long been associated with the conservative legal group The Federalist Society.

Judicial appointments like these are always closely watched by the class action bar, but the vacancies at the Seventh Circuit are particularly significant given that the court, while not widely considered “left-leaning” as, say, the Ninth Circuit may be, has generally been a favorable jurisdiction for plaintiffs in class action suits. Whether it be the court’s rejection of a heightened ascertainability standard when certifying class actions (in Mullins v. Direct Digital) or its rulings finding a variety of harms, both actual and potential, when consumers’ personal information is hijacked in a data breach (Remijas v. Neiman Marcus Group, LLC and Lewert v. P.F. Chang’s China Bistro, Inc.), it has consistently proven to be a favorable jurisdiction for class action plaintiffs with genuinely meritorious claims.

Though it is now somewhat of a rite of passage for potential judicial appointees from both sides of the aisle to go through the “umpire” routine during confirmation hearings – “I don’t make the rules, I just call the balls and strikes” – there can be no real doubt that conservative judges (and politicians and voters) tend to take a more pro-defendant stance when it comes to class actions, while liberals tend to be more pro-plaintiff. Given the trend in the past decade to make the prosecution of class actions more difficult, whether by compelling arbitration on an individual basis, raising the pleading standards for certain securities fraud cases, or requiring class members to be identified with exacting and sometimes impossible specificity, the makeup of a court as important as the Seventh Circuit will have lasting ramifications not only on the law of Illinois, Indiana, and Wisconsin but nationwide for years to come.

With these four vacancies to fill, President Trump is in a position to shift the court strongly in favor of defendants in class action cases (a role Trump himself was in in the now-infamous Trump University case). And, as noted above, a more conservative Seventh Circuit will make it more difficult for consumers to wield the best weapon they have against corporate fraud and malfeasance – the class action lawsuit.

Will this indeed be the case? Only time will tell. It seems indisputable that President Trump will try to fill these vacancies with judicial appointees in the Scalia mold, as Trump himself made clear throughout the campaign and reinforced with his appointment of Neil Gorsuch to the Supreme Court in January. On behalf of consumers everywhere, here’s hoping those appointments take the lead of the Souters and Posners of the world, putting concepts of adherence to precedent, fairness, and justice over the ideological underpinnings of the administration that got them there.