The Supreme Court wrestled with itself in oral argument about class actions, seeming to conclude it had asked the wrong question in a key case about evidentiary burdens.

In Comcast v. Behrend, in which AAJ, AARP, and Public Justice submitted an amicus brief, written by CCL vice president John Vail, the Court had asked whether, when certifying a class, a trial court must rely on admissible evidence.  At oral argument it became clear that the Court was interested not in admissibility of evidence, but in the quantum of evidence necessary to support class certification.   

The Court had discussed the case at eight conferences, a highly unusual number, before granting review and articulating the question presented.  Most cases are conferenced  just once and most often the Court accepts a question presented in a petition.  The Court seemed chagrined at its own inability to distinguish admissibility and weight of evidence, Justice Kennedy noting, “it has been an awful long time since I have been in the courtroom.”

The Court’s confusion led plaintiff and defense observers to predict that the Court would not hand down a broad ruling in the case.