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The Supreme Court Slams the Door | The Nation

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The Supreme Court Slams the Door

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A Supreme Court ruling in May, Ashcroft v. Iqbal, on how much information civil complaints in a lawsuit must contain, might seem a narrow technical matter, of interest only to lawyers and law journals. Yet, it is on just such "technicalities" that the legal rights of victims of public or private wrongdoing often hinge. For almost four decades the Court's right wing has been perfecting such technicalities as legal weapons to deny Americans an opportunity to enforce their rights in court.

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Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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In Iqbal the Court's five conservatives dismissed a suit against former Attorney General John Ashcroft and FBI Director Robert Mueller that arose out of the jailing of thousands of Arab Muslim men in the wake of 9/11. At issue was how much evidence the plaintiff, Javard Iqbal, needed to support his complaint about government mistreatment. Iqbal, a Pakistani Muslim, charged that he had been beaten, denied medical care and food, insulted, and otherwise brutalized by federal agents, all of which was conduct, he contended, that Ashcroft had authorized and Mueller had implemented. But Justice Anthony Kennedy, speaking for the majority, ruled that Iqbal's complaint did not set out enough facts "to state a claim to relief that is plausible on its face."

Under federal procedural rules 8(a)(2) and 9(b), a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and the defendant's state of mind can "be alleged generally." These rules have consistently been interpreted liberally, because in many cases the evidence of what a defendant knew, intended or planned can be found only in his files, and until the plaintiff can remain in court long enough to have an opportunity to examine those files and to question defendants and others, the merits of the case cannot be determined.

Last year, in Bell Atlantic Corp. v. Twombly the Court unexpectedly raised the pleading requirements for anti-trust actions, but the majority left it unclear whether the ruling applied beyond anti-trust cases and other large, complex cases. This past May, the Court resolved that uncertainty by extending the Twombly rule to all civil cases, overturning decades of accepted practice. It threw out Iqbal's complaint even though it contained 153 detailed factual allegations describing the beatings, denial of medical care and the other abuses he suffered. As a result, businesses that discriminate against minorities, corporations that sell harmful products and many other wrongdoers can escape having to answer in court for their actions, no matter how blatant or egregious the violation, for the Iqbal decision gives judges virtual carte blanche to dismiss a case without allowing the plaintiff any pretrial examination.

In the few months since the decision in Iqbal came down,it has resulted in the dismissal of 1500 District Court and 100 appellate court cases, many if not most of which would probably have survived; more dismissal motions are pending. Complaints against drug and other companies for multi-organ failure after taking an epilepsy drug, for false marketing and for excessive lead in baby bottle coolers have all been thrown out at the pleading stage, as have many civil rights cases.. Iqbal has also been used to dismiss a First Amendment suit by anti-Bush protesters against the Secret Service, and complaints against Coca-Cola and its Colombian subsidiaries for the murder and torture of trade unionists. In all these cases, the mental element--what defendants knew and when they knew it--is usually crucial, and without going into a defendant's files and oral questioning of knowledgeable people, that cannot be determined.

The Iqbal case is just the latest in a long line of decisions shutting the courthouse doors, few of which have drawn any public attention. The Warren Court had tried to make it easier for victims of public or private misconduct to have their day in federal court. Since 1972, however, when William Rehnquist and Lewis Powell joined the Court, conservative justices have been trying to undo almost everything the Warren Court had begun, often with legal doctrines specially crafted for the purpose.

The conservatives began by limiting standing to sue, making it much harder for plaintiffs to establish that they had personally suffered injuries sufficiently serious to warrant going to trial. In 1972 Rehnquist and his fellow conservatives dismissed a suit by opponents of the Vietnam War challenging Army surveillance of antiwar demonstrations in which the protesters had participated.

In 1974 they held that taxpayers and citizens lacked standing to enforce the constitutional ban on members of Congress serving in the military, and the constitutional requirement that "receipts and expenditures of all public money" be made public. Two years later, they dismissed a challenge by welfare recipients to an IRS regulation that allowed nonprofit hospitals to refuse to serve the poor without losing their tax exemption, and in 1984 they threw out a suit by black children in segregated schools who challenged the IRS's failure to enforce the Congressionally banned tax exemptions for private schools that excluded African-American students. Six years later they refused to allow environmentalists to challenge government actions threatening endangered species, even though Congress had authorized such suits by "anyone." And just two years ago a new right-wing majority barred suits against the executive branch for funding religious activities.

Limiting standing to sue is not the only technique the Court's right wing uses to close the courthouse door. Here's another one: some federal statutes do not specifically provide for private enforcement, but it is obvious that beneficiaries of the statute must have such a right if they are to have any remedy at all. That is because government agencies often don't have the resources or the will to enforce a law, especially when the incumbent administration has no sympathy for the particular statute; if the law's beneficiaries cannot sue, they are left with no remedy. For these reasons in the 1960s and 1970s, the Court developed a set of criteria for determining when statutory beneficiaries could sue in their own right. When Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy joined the Court in the 1980s, however, the Court tossed out these criteria. Today, victims of violations of civil rights, housing, drug, medical-device safety and securities laws, as well as those denied benefits under Medicaid, Medicare and similar laws, may not sue on their own behalf unless Congress specifically says so

This Court has also made it all but impossible to enforce federally created rights against state governments. Resurrecting and expanding the sovereign immunity doctrine--which is found nowhere in the Constitution and is based on the long-discredited common law notion that "the king can do no wrong"--the Court in a series of 5-4 decisions has denied state employees and others the right to sue state governments for violations of the Fair Labor Standards Act and other federal statutes. The only exception to this ban is when Congress acts to enforce the Fourteenth Amendment. The majority has, however, imposed on Congress such high-evidentiary criteria for these exceptions that most of the cases to come before the Court--cases involving disability, violence against women, age discrimination, patent protection--have been turned down.

Led by Justice Scalia, the Court has also made it impossible to challenge gerrymandering. Claiming that gerrymanders raise political issues too difficult for courts to decide--even though all nine justices agree that partisan gerrymandering is unconstitutional and the four dissenters find the problem quite manageable--the Court upheld a 2002 Pennsylvania redistricting that produced a 12-7 Republican majority in the House of Representatives in a state where Democratic voters slightly outnumber Republican.

More than 200 years ago, in Marbury v. Madison, Chief Justice John Marshall wrote that "the government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." And that is as true today as it was then.

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