This morning, the Supreme Court declined to review the appeal of Nicolas Martin, a class member who objected to the use of his race and that of his fellow class members to discriminate in the appointment of class counsel. In this class action, the district court judge ordered class counsel—which he appointed—to select attorneys to reflect the racial characteristics of the class. This order was based on his conclusion that race is “pertinent to [a lawyer's] ability to fairly and adequately represent” a client. In effect, the judge determined that only a white attorney could adequately represent a white client, a black attorney a black client, and an Hispanic attorney an Hispanic client.
The Second Circuit denied Martin even the opportunity to raise his objection. It held that Martin did not have standing to raise his objection because he hadn’t alleged that the class counsel’s representation had been deficient or that the settlement that counsel reached had been unfair. Martin appealed this decision and PLF filed this brief supporting his appeal, arguing that the classification of the class by race and selection of attorneys to represent it based on race is a constitutional injury in its own right.
Although the Court didn’t take the case, the denial garnered a noteworthy statement from Justice Alito. He began by explaining that the Court’s decision to deny review was due to the uniqueness of this discrimination—only one district court judge has ever required racial discrimination in the appointment of class counsel—and not the Court’s view that the judge’s discriminatory order was proper. On that issue, Alito did not mince words. As he explained, he was “hard-pressed to see any ground on which Judge Baer’s practice can be defended.” Because “racial discrimination has no place in the courtroom,” it is doubtful that this sort of court-ordered discrimination could survive a constitutional challenge.
Alito also noted some of the absurdities of the Second Circuit’s standing decision. First, he noted that this was a case in which counsel was awarded $13 million for handling a case in which class members received no compensation. Furthermore, he noted that every class member has a strong and legitimate interest in the appointment of class counsel because class counsel is their attorney. If a judge believed that only white attorneys are able to adequately litigate complicated class actions—because of his racist belief that attorneys of all other races are deficient—would it be proper for an appellate court to refuse to hear objections unless the class members could show that the attorney chosen as a result of this discrimination did a poor job? Of course not! And that’s why the decision below was so terrible. It’s a shame that the Supreme Court didn’t take this opportunity to condemn this discrimination. But, hopefully, Alito’s sharply-worded statement—he called out the district judge by name—will deter this practice going forward.