Government Class Actions After Jennings v. Rodriguez

by Maureen Carroll, Alexandra D. Lahav, David Marcus & Adam Zimmerman

This post is excerpted from the Harvard Law Review Blog.

The Supreme Court’s recent decision in Jennings v. Rodriguez raised the momentous question of whether the government can indefinitely detain people without a hearing. If the government has its way, the case also may close the courthouse doors to a wide array of class actions long used to challenge unlawful government action.

In Jennings, the Court, in an opinion by Justice Alito, ruled that the government did not have to offer detained immigrants bond hearings under the Immigration and Nationality Act. But the Court declined to address a related issue—whether denying bond hearings would violate due process. Instead, the Court sent the case back to the Ninth Circuit to address that question first.

But the Court didn’t stop there. At the end of the majority opinion, the Court also invited the Ninth Circuit to consider whether plaintiffs could bring a class action at all for their due process claim. In so doing, the Court asked whether individual differences between plaintiffs prevented courts from certifying class actions in due process cases, just as they did in Wal-Mart Stores, Inc. v. Dukes, a multi-billion dollar damage class action decided by the Supreme Court seven years ago.

Read the complete post here.