The media storm surrounding Supreme Court Justice Sonia Sotomayor's confirmation provided us with a powerful illustration of the ways in which our court system not only mirrors, but affects our day-to-day lives. In a nation that is 12.5% Latin American (as of the 2000 Census) and roughly 50% female, the appointment of the first Latina Supreme Court Justice was certainly long overdue. However, legal issues that get zero attention in the mainstream media also have a profound impact on our lives, perhaps more given their ability to slide by unnoticed. This is especially true of two recent cases that flew under the radar, Bell Atlantic Corp vs. Twombly, and Ashcroft vs. Iqbal.
These two cases reflect a significant shift in the Supreme Court’s thinking around the issue of how much people have to know and present to bring a case to court. In Twombly and Iqbal, the Supreme Court decided to impose a new and vague standard – the 'plausibility standard' – in order to start a case. What does the term ‘plausibility standard’ mean? The courts and perhaps Congress are going to take a while to sort it out, but it seems to mean that those seeking to bring a lawsuit not only have to show that the alleged misconduct was not only possible, but plausible. In the past, demonstrating that sort of proof was required during the course of the lawsuit, not as part of the initial papers filed at the start of the case. For example, if people are subject to employment discrimination they may know that they were demoted or fired and that they didn’t do anything wrong, but they don’t have access to the behind-the-scenes information that went into the firing/demotion decision. That means that a person would have a hard time getting proof of discrimination, which is now required in order for that person to bring their case to court.
When the Supreme Court first announced the new standard in Twombly, the media did not pick up on the new requirement. This is likely due to the distinct lack of sex-appeal in anti-trust cases. The media only cottoned on to the ‘plausibility standard’ with the Iqbal decision. Iqbal received slightly more media attention due to the facts of the case dealing with the abuse inflicted upon Pakistani immigrant Javaid Iqbal in detention. Nevertheless, the media did not delve into the shift in ‘pleading standard’ or its impacts, certainly not to any significant degree.
According to Alex Reinert, who argued the case, “The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement of relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.”
Most law students learn that there’s something called “notice pleading” in federal courts. Notice pleading means that a person starting a new case has to file papers with enough information to give notice to the other side, letting them know what the case is about. Have the ‘conservative’ members of the court decided to depart from the time-honored, written-in-stone notice pleading? Why?
Whatever the motivation, the change is likely to affect cases of discrimination. This is expected to be a barrier for people who feel they have to prove that their employer or landlord were intentionally discriminating against them. It’s often nearly impossible to get the e-mails or memos documenting the intent of an employer or landlord before you file a case. No one hands documents over until they are required to do so. Now, it’s likely that cases won’t get to the stage when these kinds of documents would be required to be turned over. This new barrier posed by the Supreme Court appears to be too high.
Professor Reinert highlighted a further concern raised by the vague new pleading standard, adding, “I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well."
Given the bedlam caused by both decisions, Senator Arlen Specter (D-PA), recently introduced a bill in Congress, attempting to restore the standard that existed before Twombly and Iqbal. The Senator's bill should be given due consideration as a means of curbing the national trend of using technicalities to block access to justice.
Equally important is the public’s role. We the people need honest discourse and a clear understanding of the role of judges and courts in our society. Americans need to understand that what happens in the courtrooms of our nation, however obscure, will inevitably play out in the course of our daily lives. Even these so-called conservative judges are “making law.” We, and our media, should be paying attention.