Class Certification

For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. In broad strokes, Ginsburg favored granting significant discretion to district judges to determine whether, based on the unique facts and pragmatic concerns of each case, a class action was the appropriate vehicle for resolution. By contrast, Scalia favored requiring putative class plaintiffs to meet an ever-increasing set of “bright line” rules in order to have a class certified. Fundamentally, this debate reflected their views on the desirability of class actions as a means of dispute resolution.

With Scalia's passing, the court has hinted that it will embrace Ginsburg's pragmatic approach in future cases. But, as discussed below, surprisingly few clues indicate whether President Trump's nominee to replace Scalia, Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit, will follow in Scalia's footsteps in this area.