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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 relevant 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 
 

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Statement of ALITO, J. 

Federal Rule of Civil Procedure 23, which sets out the 

requirements that a putative class must meet to gain certification. One such requirement is adequate class counsel; 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 sexbased 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 Retirement 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 otherwise—[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. 
 

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Statement of ALITO, J. 

Residential Capital, LLC, 2012 WL 4865174, *5, n. 5 

(SDNY, Oct. 15, 2012); In re Gildan Activewear Inc. Securities 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 members. 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 adequacy of class counsel. Petitioner asked the Second Circuit 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 hardpressed 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). Courtapproved 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 appointment 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
 

 

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Statement of ALITO, J. 

dling a case in which the class members received no compensation—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 intolerable 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 consider “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 composition in terms of relevant race and gender metrics.” In 

some cases, only the defendant will possess such information, 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 gender 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 ethnic 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 
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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 relatively 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 feature in question would cause the objecting member the

sort of harm that is needed to establish Article III standing. 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 settlement 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 
 

 

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Statement of ALITO, J. 

is by no means clear to me that this is the same as requiring 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 interest 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 discrimination. If a district judge had a practice of appointing only

attorneys of a particular race or gender, would an appellate 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 certiorari). If the challenged appointment practice continues 

and is not addressed by the Court of Appeals, future review may be warranted.