There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim brought by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States. What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome. What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss. The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible. What will judges rely on to make this determination? According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.” That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”
Why does this matter? It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim. It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts. Iqbal has been cited 500 times by federal judges since it came down less than two months ago. Many of the judges citing the case were granting motions to dismiss.
The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs. They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court. That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.