482 U. S. 437
June 15, 1987
An old law from 1853 said that federal courts could require losing parties to pay up to $30 per day to cover the expenses of expert witnesses. Since expert witnesses are a wee bit more expensive these days, some courts interpreted Rule 54(d) from the Federal Rules of Civil Procedure as giving courts discretion to go above that statutory limit in awarding court costs.
Rehnquist wrote for seven Justices, rejecting the claim that Rule 54(d) allowed courts to exceed the $30 per day limit from the 1853 Fee Act. To allow courts that kind of discretion, he said, would make the provisions of the Fee Act entirely without meaning. Furthermore, the discretion that Rule 54(d) allowed was not incompatible with the Fee Act’s limits, because of the possibility of downward (rather than upward) discretion. To round out this analysis, Rehnquist showed how consistent all of this was with precedents over the years. Blackmun added a one sentence concurrence which left open the possibility that Section 1988 might allow for higher expert witness fees.
Marshall tossed off a baffling dissent that was joined by Brennan. Observing that the Fee Act did not purport to be an exhaustive list of allowable costs, he said that Rule 54(d) gave courts basically unlimited discretion in awarding costs. He also pointed out that Rule 54(d) had no real meaning under the majority’s analysis, since the Fee Act had already made awarding the enumerated costs discretionary. Marshall further argued that principles of equity required the ability to impose higher costs.
I call the dissent “baffling” because it never once even attempts to explain away or even address the plain $30 limit in the statutory text. In conservative circles, Marshall and Brennan have a reputation of being unprincipled activist hacks. This looks like precisely the sort of dissent which ultimately garnered them that reputation. What’s so frustrating is that it isn’t even good activism. The last thing this nation needs is more civil lawsuits, more overpaid expert witnesses, and more vindictive court cost shifting.