In 2012, Supreme Court Justice Antonin Scalia jokingly quipped, "who cares about civil procedure?"

But that rhetorical question masks the lasting impact that Justice Scalia had on class action litigation, an area teeming with complex and important procedural issues.

In 2011 and 2013, Justice Scalia authored two landmark decisions that significantly altered the class action landscape in federal court (Comcast Corp. v. Behrend, 133 S. Ct 1426 (2013); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)). And with two notable class action cases pending on the Court's docket this Term, the Court has the opportunity to alter that landscape even further, with cases addressing:

(For more information on these cases, see Article, Hot Topics in Class Action Litigation.)

So long as Justice Scalia's seat remains vacant, the outcome in Spokeo and Tyson Foods is far from certain. But Justice Scalia's lasting impact on class action litigation remains clear. For years, the courts of appeals disagreed as to the extent to which class plaintiffs are required to affirmatively prove that the FRCP 23 requirements are met.

In Comcast and Dukes, the Court resolved this split of authority (with Justice Scalia writing for the majority), and clarified the high threshold plaintiffs must meet to be entitled to class certification:

(Comcast Corp., 133 S. Ct at 1432; Dukes, 131 S. Ct. at 2551; and see Practice Note, Class Actions: Certification: US Supreme Court Defines Common Questions in Wal-Mart v. Dukes; Legal Update, Supreme Court Rules for Comcast in Class Action Antitrust Case.)

In Dart Cherokee, by contrast, the Court clarified the relatively low threshold defendants must meet when alleging the amount-in-controversy in a notice of removal under the Class Action Fairness Act of 2005 (CAFA) (Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553-54 (2014)).

Perhaps underscoring his actual appreciation for procedural issues, Justice Scalia dissented on procedural grounds, arguing that the merits of the appeal were not properly before the Court. After conceding that he overlooked a similar issue when joining the majority opinion in a previous CAFA decision, Justice Scalia observed, “[a]s for my own culpability, … its irrelevance to my vote in the present case has been well expressed by Justice Jackson, …: 'I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.'" (Id. at 558-62 (Scalia, J., dissenting).)

Much uncertainty remains as to the direction of the Court's class action jurisprudence. But as the class action cases on this Term's docket make clear, there are many reasons to care about civil procedure. And in the meantime, Practical Law's Class Action Toolkit has many resources designed to assist attorneys with litigating class actions, including: