Since the court’s 5-to-4 decision six years ago in Ashcroft v. Iqbal, the rate of early dismissals in cases brought by individuals has risen sharply.
This is the sort of legal reportage that can often cause us laymen to doze off. Not that it isn’t important; it’s just that it sounds so remote from our lives.
But it isn’t and this story is, to me, one of the most important and ominous articles about our rights as individual plaintiffs.
Written by the New York Times’s excellent Supreme Court reporter, Adam Liptak, it notes the great significance of this Supreme Court decision to us “little guys”:
It has been cited in more than 85,000 lower-court decisions. But lawyers and law professors continue to differ about its practical effects, which are harder to measure than one may think. The latest and probably most thorough in a long series of studies, to be published in the Virginia Law Review, concluded that the decision had hit the powerless the hardest.
“Powerless.” That’s us:
Before Iqbal, cases brought by individuals represented by lawyers were dismissed 42 percent of the time. After Iqbal, the rate was 59 percent. For corporate plaintiffs, the rates of dismissal stayed basically flat, edging up to 38 percent from 37 percent.
Employment discrimination and civil rights cases have become particularly vulnerable to early dismissal, the study found.
And who is likely to be filing employment discrimination and civil rights cases? Not corporations. We individuals are most likely to file such cases. But this, another in a wretched series of Supreme Court decisions, has made it easier for the entities we sue–employers, police departments, corporations, municipalities–to get our cases dismissed.
And for even more irrational unfairness, those entities have the money to defend themselves for years, and to ask for early dismissal. We individuals do not. We require the time to subpoena and assemble documents that will support our lawsuits; this specific decision limits that crucial discovery process:
Before the decision, all plaintiffs had to do to start a lawsuit was to file what the rules of civil procedure call “a short and plain statement of the claim” in a document called a complaint. After filing such a bare-bones and often formulaic complaint, plaintiffs would be entitled to force defendants to open their files and submit to questioning under oath.
Since the Iqbal decision, which was decided by a 5-to-4 vote, plaintiffs must set out concrete facts at the outset. The decision then requires judges to scrutinize complaints closely and to dismiss ones that strike them as implausible based on their gut instincts or, as Justice Anthony M. Kennedy put it for the majority, on their “judicial experience and common sense.”
If these Supreme Court judges had any “common sense,” they never would have decided this case as they did.
The new standard is sometimes called “plausibility pleading.” Soon after it was announced, Justice Ruth Bader Ginsburg, who had dissented, told a group of judges that it had “messed up the federal rules” governing civil litigation.
The next paragraph tells us bluntly how bad this decision is for us and for civil rights:
A couple of years later, a federal appeals court judge said the new standard might have required dismissal of the terse complaint in Brown v. Board of Education, the one that led to the Supreme Court’s landmark 1954 school desegregation decision.
Whenever you wonder why you should vote for a presidential candidate–after all, to vote in a national election, we have to compromise our fine ideals and become practical (we can only vote for someone who is actually on the ballot and anyone who gets as far as the ballot will have had to modify her own ideals in order to attract enough voters to win)–remember that the five Supreme Court justices who decided this thing were all appointed by Republicans.