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.
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.