Most Americans believe they have the right to take their grievances to court. But in 2009, the Supreme Court’s ruling in Ashcroft v. Iqbal imposed a new hurdle—one of several it has created for plaintiffs in recent years—that prevents many people from getting a hearing.
The procedural rules for our federal courts, established in 1938, were designed to provide relatively easy entrée. Civil Rule 8 required only a “short and plain statement” showing a right to relief. For over 60 years, the Supreme Court repeatedly said that plaintiffs need only give the defendants notice of their claims; proof of what actually happened was for trial. But in Iqbal, the Roberts Court drastically departed from the justice-seeking ethos of easy access. By doing so, it radically extended a process started two years earlier in Bell Atlantic v. Twombly, a potentially mammoth antitrust case against the telephone industry.
Iqbal was an emotionally charged outgrowth of 9/11. Javaid Iqbal, a Pakistani Muslim, claimed that numerous high-ranking federal officials, including Attorney General John Ashcroft and FBI director Robert Mueller, were aware of and condoned his illegal detention and harsh treatment in a Brooklyn facility, allegedly targeting him because of his race and religion. The legal issue was whether his pleading satisfied Rule 8. Instead of asking only whether Iqbal had given sufficient notice of his claims, the Court essentially rewrote the rule and insisted that his pleading had to state facts showing that his claim was “plausible,” a significantly more demanding standard than Rule 8 ever intended.
The Court didn’t have to go beyond the particular facts of Twombly or Iqbal, both of which were extremely unusual and unique. Yet in Iqbal, a 5–4 majority declared that this newly minted pleading standard should be applied in all federal civil cases. As a result, specific facts must now be alleged even in run-of-the-mill cases; if this isn’t done, the plaintiff will be dismissed.
And the reason? The Court’s opinions expressed concern only about the burden on corporate America of defending against claims, as well as the distraction and intrusion of litigation against government officials and agencies. The effects of closing the courthouse doors on individuals were barely acknowledged. Twombly and Iqbal exemplify the Roberts Court’s lack of confidence in the ability of federal trial judges to eliminate frivolous cases and control litigation costs and delay, and an even greater lack of confidence in the people who sit on juries.
The Court told federal trial judges to use their “judicial experience” and “common sense” to decide whether plaintiffs have “plausible” claims. That promotes judicial subjectivity, which inevitably will be influenced by each judge’s economic and social background, values, and attitudes. Realistically, the Court’s vague standard invites judges to guess at a case’s merits based solely on the complaint. But that is decision-making by paper, a far cry from our long-standing tradition of witnesses testifying before a jury in open court.