Cite as: 571 U. S. ____ (2013)
`
`Statement of ALITO, J.
`
`SUPREME COURT OF THE UNITED STATES
`
` NICOLAS MARTIN, v. CARL BLESSING, ET AL.
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
`
`
` No. 13–169 Decided November 18, 2013
`
`The petition for a writ of certiorari is denied.
` THE CHIEF JUSTICE took no part in the consideration or
`decision of this petition.
` Statement of JUSTICE ALITO, respecting the denial of the
`
`
`petition for writ of certiorari.
`The petition in this case challenges a highly unusual
`
`practice followed by one District Court Judge in assessing
`the adequacy of counsel in class actions. This judge insists
`that class counsel “ensure that the lawyers staffed on the
`case fairly reflect the class composition in terms of rele­
`vant race and gender metrics.” App. to Pet. for Cert. 35a.
`
`
`The uniqueness of this practice weighs against review by
`this Court, but the meaning of the Court’s denial of the
`petition should not be misunderstood.
`I
`
`In 2008, the Nation’s only two providers of satellite
`digital audio radio services, Sirius Satellite Radio, Inc.,
`and XM Satellite Holdings, Inc., merged to form a new
`
`company, Sirius XM Radio, Inc. (Sirius). Id., at 8a–9a.
`Their subscribers claimed the merger violated antitrust
`laws and filed several class actions that were joined in
`a consolidated complaint and assigned to Judge Harold
`Baer, Jr., of the Southern District of New York. Judge
`Baer appointed three law firms to serve as interim class
`
`counsel. Ibid.
`
`In July 2010, class plaintiffs moved to certify a federal
`
`antitrust class. Ibid. Class certification is governed by
`
`
`
`
`
`
`
`
`
`1
`
`
`
`
`
`

`
`2
`
`
`
`
`MARTIN v. BLESSING
`
`Statement of ALITO, J.
`
`Federal Rule of Civil Procedure 23, which sets out the
`
`requirements that a putative class must meet to gain cer­
`tification. One such requirement is adequate class coun-
`
`sel; subsection (g) orders the district court to consider
`four particular indicators of adequacy. It provides also
`that the district court “may consider any other matter
`pertinent to counsel’s ability to fairly and adequately
`represent the interests of the class.” Fed. Rule Civ.
`Proc. 23(g)(1)(B).
`
`Citing that provision, Judge Baer ordered that the three
`law firms appointed as interim counsel (and subsequently
`elevated to permanent counsel) “ensure that the lawyers
`staffed on the case fairly reflect the class composition in
`terms of relevant race and gender metrics.” App. to Pet.
`for Cert. 35a.
`
`Class certification orders that impose race- and sex­
`based staffing requirements on law firms appear to be part
`of Judge Baer’s standard practice. In 2007, Judge Baer
`followed this practice in considering certification of a class
`of plaintiffs seeking redress under the Employee Retire­
`ment Income Security Act. See In re J. P. Morgan Chase
`Cash Balance Litigation, 242 F. R. D. 265, 277 (SDNY
`2007).
`
`Three years later, in Spagnola v. Chubb Corp., 264
`F. R. D. 76 (SDNY 2010), Judge Baer refused to certify a
`putative class of insurance policyholders in part because
`of the race and gender of the proposed class counsel. He
`noted that “proposed . . . counsel . . . ha[d] provided no
`information—firm resumé, attorney biographies, or other­
`wise—[regarding the race or gender of the lawyers assigned
`to the case].” Id., at 95, n. 23.
`
`Judge Baer has repeated this practice in at least three
`additional class actions apart from the one before the
`Court today. See Public Employees’ Retirement System of
`
`
`
`Miss. v. Goldman Sachs Group, Inc., 280 F. R. D. 130, 142,
`n. 6 (SDNY 2012); New Jersey Carpenters Health Fund v.
`
`
`
`
`
`
`
`
`
`

`
`3
`
`
`
`
`
`
`
`
`
` Cite as: 571 U. S. ____ (2013)
`
`Statement of ALITO, J.
`
` Residential Capital, LLC, 2012 WL 4865174, *5, n. 5
`
`(SDNY, Oct. 15, 2012); In re Gildan Activewear Inc. Secu-
`rities Litigation, No. 08 Civ. 5048 (SDNY, Sept. 20, 2010).
`
`Following certification in the present case, Sirius and
`
`
`class counsel reached a settlement that drew objections.
`
`Under the deal, Sirius would freeze its prices for five
`months and pay class counsel $13 million in attorney’s
`fees. Blessing v. Sirius XM Radio Inc., 507 Fed. Appx. 1,
`3, 4 (CA2 2012). Sirius would pay no cash to class mem­
`bers. Ibid. Nicolas Martin, a class member and petitioner
`here, objected, not only to those terms, but also to Judge
`Baer’s reliance on race and gender in assessing the ade­
`quacy of class counsel. Petitioner asked the Second Cir­
`cuit to set aside the settlement as the tainted product of
`
`an invalid certification order. The Second Circuit rejected
`his challenge to the certification order on standing
`grounds, concluding that Martin failed to allege injury in
`fact. Martin now asks this Court to intervene.
`
` II
`
`Based on the materials now before us, I am hard­
`pressed to see any ground on which Judge Baer’s practice
`can be defended. This Court has often stressed that
`“[r]acial discrimination has no place in the courtroom,
`whether the proceeding is civil or criminal.” Edmonson v.
`
`Leesville Concrete Co., 500 U. S. 614, 630 (1991). Court­
`approved discrimination based on gender is similarly
`objectionable, and therefore it is doubtful that the practice
`
`in question could survive a constitutional challenge.
`
`
`Before reaching this constitutional question, however, a
`court would have to consider whether the challenged
`practice can be reconciled with Rule 23(g), which carefully
`regulates the appointment of class counsel. The appoint­
`
`ment of class counsel is a sensitive matter. Because of the
`fees that class counsel may receive—witness the present
`case in which counsel was awarded $13 million for han­
`
`
`
`
`
`

`
`MARTIN v. BLESSING
`
`Statement of ALITO, J.
`
`dling a case in which the class members received no com­
`pensation—any deviation from the criteria set out in the
`Rule may give rise to suspicions about favoritism. There
`are more than 600 district judges, and it would be intoler­
`able if each judge adopted a personalized version of the
`criteria set out in Rule 23(g).
`
`It is true that Rule 23 allows a district court to con­
`sider “any . . . matter pertinent to counsel’s ability to fairly
`and adequately represent the interests of the class,”
`Rule 23(g)(1)(B), but I doubt that this provision can be
`stretched to justify the practice at issue here. It seems
`quite farfetched to argue that class counsel cannot fairly
`and adequately represent a class unless the race and
`
`gender of counsel mirror the demographics of the class.
`Indeed, if the District Court’s rule were taken seriously, it
`would seriously complicate the appointment process and
`lead to truly bizarre results.
`
`It may be no easy matter to ascertain “the class compo­
`
`sition in terms of relevant race and gender metrics.” In
`some cases, only the defendant will possess such infor­
`mation, and where that is so, must the parties engage in
`discovery on this preliminary point? In other cases, it may
`
`be impossible to obtain the relevant information without
`requesting it from all of the members of the class. For
`example, in a securities case in which the class consists of
`everyone who purchased the stock of a particular company
`during a specified period, how else could the race or gen­
`der of the class members be ascertained?
`
`Where the demographics of the class can be ascertained
`or approximated, faithful application of the District Court’s
`rule would lead to strange results. The racial and eth-
`nic makeup of the plaintiff class in many cases deviates
`significantly from the racial and ethnic makeup of the
`general population or of the bar. Suppose, for example,
`that the class consisted of persons who had undergone a
`particular type of treatment for prostate cancer. Would it
`
`
`
`
`
`4
`
`
`
`
`

`
`
`
` Cite as: 571 U. S. ____ (2013)
`
`Statement of ALITO, J.
`
`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? In some cases, the
`members of a class may be significantly more affluent
`than the general population. (A class consisting of the
`purchasers of stock may be an example.) To the extent
`
`that affluence correlates with race, would it be proper for a
`
`district judge in such a case to favor law firms with rela­
`tively low minority representation?
`The Second Circuit did not decide whether the District
`
`
`Court’s practice is unconstitutional or otherwise unlawful
`because the court held that Martin lacked standing to
`challenge the order at issue. Martin did not allege that he
`actually received inferior representation, and therefore the
`Second Circuit, invoking the standard used to determine
`whether a plaintiff has standing under Article III of the
`Constitution, refused to entertain Martin’s objection on
`the ground that he had suffered no injury in fact. I find
`this reasoning debatable.
`
`It is not clear that a class member who objects to a
` feature of a proposed settlement must show that the fea­
`
`ture in question would cause the objecting member the
`sort of harm that is needed to establish Article III stand­
`ing. Article III demands that the members of the plaintiff
`class demonstrate that they were injured in fact by the
`alleged antitrust violations, see Amchem Products, Inc. v.
`Windsor, 521 U. S. 591, 613 (1997), but the plaintiff class’
`satisfaction of this requirement is not challenged. At
`issue, instead, is Martin’s ability to object to the proposed
`settlement, and Rule 23(e)(5) states without qualification
`that “[a]ny class member may object” to a proposed set­
`tlement requiring court approval. I assume for present
`
`purposes that a court need not entertain the objection of a
`class member who is not aggrieved by a settlement, but it
`
`
`
`
`
`5
`
`
`
`
`
`
`
`
`
`

`
`
`
`6
`
`
`
`
`MARTIN v. BLESSING
`
`Statement of ALITO, J.
`
`is by no means clear to me that this is the same as requir­
`ing proof of an injury in fact within the meaning of Article
`III. See Devlin v. Scardelletti, 536 U. S. 1, 6–7 (2002) (an
`objecting class member “has an interest in the settlement
`that creates a ‘case or controversy’ sufficient to satisfy
`
`the constitutional requirements of injury, causation, and
`
`redressability”).
`
`Whether or not Martin suffered injury in fact in the
`Article III sense, he unquestionably has a legitimate in-
`
`terest in ensuring that class counsel is appointed in a
`
`lawful manner. Ibid. The use of any criteria not set out
`specifically in Rule 23(g) or “pertinent to counsel’s ability
`to fairly and adequately represent the interests of the
`class” creates a risk of injury that a class member should
`not have to endure. And class members have a strong and
`legitimate interest in having their attorneys appointed
`pursuant to a practice that is free of unlawful discrimina­
`tion. If a district judge had a practice of appointing only
`attorneys of a particular race or gender, would an appel­
`late court refuse to entertain a class member’s objection
`unless the class member could show that the attorney in
`question did a poor job?
`
`Unlike the courts of appeals, we are not a court of error
`correction, and thus I do not disagree with the Court’s
`refusal to review the singular policy at issue here. I
`stress, however, that the “denial of certiorari does not
`
`constitute an expression of any opinion on the merits.”
`
`Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens
`and KENNEDY, JJ., statement respecting denial of certio­
`rari). If the challenged appointment practice continues
`and is not addressed by the Court of Appeals, future re­
`view may be warranted.