Alito Questions Judge's Race and Gender Criteria for Class Counsel

Much like women who are online dating receive far more suitors than they can handle, the Supreme Court gets asked for a date far more often than it can (or will) accept. As a result, the grant rate for certiorari is a bit less than 1 percent.

With that in mind, the Monday orders list is usually a sad, yet uneventful waiting room full of spurned parties. Today? It was far from a riot, but there were a few notable cases, including the court's denial of a writ of mandamus in an NSA surveillance case and this, a half-hearted benchslap by Justice Alito.

Martin v. Blessing: Judge Baer Blows It ...

Judge Harold Baer, Jr., of the Southern District of New York, has a truly unique requirement for class counsel: firms seeking appointment must "ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics."

With Quotas for Court Counselors ...

Nope. You read that right. Firms must match their attorneys' gender and race, using metrics, to those of the affected class members, at least in Judge Baer's court. Justice Alito runs through a series of cases to show that this wasn't a one-time occurrence, either. (And Justice Alito isn't the only one noticing, and criticizing, this unique requirement.

Which is Clearly a Terrible Idea ...

What was Alito's take on the local procedure?

"I am hard­-pressed to see any ground on which Judge Baer's practice can be defended."

After mentioning the constitutional considerations, Justice Alito addressed Rule 23, which governs appointment of class counsel. Though it allows the court to consider "any ... matter pertinent to counsel's ability to fairly and adequately represent the interests of the class," Alito criticized Baer's assumption that the counselor must match the class, and noted that the rule could lead to some pretty bizarre results.

"Suppose, for example, that the class consisted of persons who had undergone a particular type of treatment for prostate cancer. Would it be proper for a district judge to favor law firms with a high percentage of male attorneys? Or if the class consisted of persons who had undergone treatment for breast cancer, would it be permissible for a court to favor firms with a high percentage of female lawyers?"

You get the point. Actually, you probably already got the point: it's a stupid, baseless rule (even if the judge's intentions were in the right place).

Meanwhile, The Second Circuit Also Screwed Up ...

The Second Circuit denied the objecting class member's appeal because he couldn't allege an injury, or that he received substandard representation. Alito disagreed with this as well, noting that Rule 23 allows "any class member [to] object" to a proposed settlement, and that such an objection does not need to meet the Article III injury in fact standard. Class members do, on the other hand, have an interest in ensuring that the counsel that represents them is appointed in a lawful manner.

But, We Don't Have Time For This.

Yet still, no cert. Why? "[W]e are not a court of error correction."

This case is just too insignificant to reach the docket. Nonetheless, Alito will be watching, and "[i]f the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted."

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• Friday Roundup: Clever Infographic, Breyer's Admission, and More (FindLaw's U.S. Supreme Court Blog)