It is a sad fact that those things to which we pay the most attention often have the least significance. A case in point is Eric Massa, who will not even rate a footnote in history. At the same time, truly significant developments often go unnoticed. It’s only years later that we realize something has changed, brought about by something that went virtually unnoticed at the time.
This is a case in point, reported by the American Prospect. Back in 2003 Javaid Iqbal, a Pakistani immigrant, was jailed in New York and tortured, before being deported. There is no evidence that he had ever done anything wrong.
The following year, he filed a lawsuit against dozens of U.S. officials, claiming he was declared a “high interest” detainee and placed in ADMAX because of his race, religion, and national origin. Iqbal’s lawyers sought to question former Attorney General John Ashcroft and FBI Director Robert Mueller under oath about their responsibility for the jailing and abuse of detainees in the Brooklyn detention center. But by a 5-4 vote last May, the Supreme Court’s conservative majority rejected the request, quashing a lawsuit that had spent five years climbing through the lower courts. The justices ruled that Iqbal’s lawyers had not made a plausible case that Ashcroft or Mueller was responsible for Iqbal’s mistreatment and barred the lawyers from asking the government to turn over evidence to which only it had access. In doing so, the court used Ashcroft v. Iqbal to rewrite more than a half-century of precedent establishing the hurdles plaintiffs must cross before they can begin discovery — the pre-trial process that requires defendants to hand over internal documents, answer questions under oath, and provide other evidence.
The opinion was so broad that it has become a formidable weapon for corporations and other defendants trying to shield themselves against everything from employment discrimination to product-liability lawsuits. Since the ruling, dozens of cases that might have once proceeded have been thrown out because they don’t meet the Iqbal test.
When John Roberts, and Alito were nominated, attention was focused on their views on so-called social issues, such as abortion, but perceptive observers knew that their real agenda was corporatist. They haven’t touched the abortion decision, and probably don’t care if they do, but they have done yeoman’s work for the corporations to whom they have always given their primary allegiance.
The fact is that it is often the case that we know beyond a moral doubt that something is happening when we lack the legal evidence to prove it. Employment discrimination cases are a great example. If white folks, or men, seem to be getting all the promotions, you might know deep in your gut that something is wrong, but you have to prove it with raw data, and that’s where the discovery process comes in. If you have to prove your case before you start discovery, then many cases will never be commenced. Heretofore, you could commence discovery as long as you alleged facts that stated a cause of action (which the Prospect calls the pleading standard, a term I’ve never heard, though it’s accurate enough); now you have to produce hard evidence in support of the common sense inferences that flow from known facts. It’s those inferences you need discovery to prove, but now you don’t get discovery unless you can prove it to begin with. If, for instance, the New York Times, citing unnamed sources, disclosed that a certain corporation was poisoning your water, you might not be able to sue unless you could name those sources. The Prospect cites just such a case.
The Prospect notes:
Indeed, legal scholars will long debate whether the Roberts court seized on the Iqbal case to change the pleading standard or whether it changed the pleading standard incidentally, in its eagerness to throw out the Iqbal case and protect senior national-security officials from questioning.
I don’t think there’s much debate here. It was a perfect opportunity to make such a ruling, because its real impact would get lost in the smoke that alway surrounds the word “terrorism”. Congress is already bought and paid for, with even worse to come as we enter the era of corporate sponsorship of politicians. Now the courts are being slowly closed to the average citizen, not by direct legislation, but by arcane interpretations of the legal ground rules by which we adjudicate legal disputes.
Meanwhile, the Obama Administration, eschewing the idea that it might be able to do two things at once, has done almost nothing to get its judicial nominees approved, practically guaranteeing right wing judicial dominance into the foreseeable future.
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