Thin Line: Minimal Diversity Concluded

At least one person was interested in the conclusion of my thoughts on minimal diversity. OK, here it is.

We've all become very used to congressional criticisms of activist judges, and that almost always means activist federal judges, although there's always that pesky Massachusetts high court . . . .

In the wake of these criticisms, we see a lot of arguments about curbing the authority of federal courts; this almost always means depriving federal courts of jurisdiction over certain classes of cases, such as jurisdiction over DOMA cases or Pledge of Allegiance cases. So, on one hand, Congress--or certain members of Congress, er, Republican members of Congress--have spoken out against the federal judiciary, in an on-the-record way that is hard to disclaim.

But . . . but . . . at the same time the GOP Congress have worked to move lots of cases into the federal courts. The best example of this is the Class Action Fairness Act of 2005, which lowers the diversity bar to bringing class actions in federal court (or removing such cases to federal court). Congress has changed the rules, as interpreted by the Supreme Court, to permit cases to be brought in federal court even if the rule of complete diversity is not satisfied. Thus, minimal diversity.

The point, I guess, is that despite Congress's complaints about the federal courts, the Republican majorities in Congress actually prefer, in many cases, that cases be heard in federal court, as opposed to state court. The Republican majority can control the federal courts, at least when cases don't involve the Constitution. So, the Republicans want to shift tort and contract class actions brought against corporations to the federal courts, and away from the state courts, and to shift issues like gay marriage to the state courts . . . .

The punchline, I guess, is that there's a thin line between love and hate. The GOP loves federal courts, some of the time, when the alternative is state judges handling class actions, but they hate federal courts, when those courts are interpreting the Constitution.