MSU Law Faculty in the News
Supreme Court shifts power from juries to judges
May 28, 2009
Lansing State Journal Op Ed
By Lumen N. Mulligan
Congressman John Dingell, D-Dearborn, once said at a congressional hearing, "I'll let you write the substance ... and you let me write the procedure, and I'll screw you every time." The U.S. Supreme Court has taken these words to heart it seems.
On Monday, in Ashcroft v. Iqbal, the Supreme Court shrouded yet another substantial, constitutional rights decision within the dusty confines of "procedure."
Federal authorities arrested Mr. Iqbal, an Arab Muslim, after the 9/11 attacks. After his release and deportation to Pakistan, Iqbal sued senior Department of Justice officials contending that he was arrested solely on the basis of his race and religion. Such allegations, if true, would constitute significant constitutional violations and would justify an award of monetary damages for Iqbal.
The questions for the Supreme Court in this case were: Who gets to decide whether Iqbal's allegations are true, and at what point in the trial will that decision be made? The answers are not, as you might assume: the jury, and at the close of the case.
Rather, the court, in a 5-4 opinion authored by Justice Anthony Kennedy, answered: the judge, at the very beginning of the case.
From 1938 until 2007, federal courts operated under the rule that facts stated in initial court filings, such as Iqbal's complaint, are assumed true for the purposes of early motions to dismiss. The court in Iqbal, and a 2007 anti-trust case, Bell Atlantic Corp. v. Twombly, abandoned that time-honored standard. Signaling this shift, the court agreed that Iqbal's "allegations are consistent with ... [his designation as a person] 'of high interest' because of [his] race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose." That is, the court did not believe in the veracity of Iqbal's preliminary allegations.
If the federal courts apply this new rule broadly, few cases that require allegations about defendants' motivations will survive a skeptical judge's initial review. Judges will be empowered to dismiss, say, gender or racial discrimination cases at the earliest stage because the judge - not the jury - does not find the plaintiff's allegations truthful.
Our system of justice, however, is set up to reserve such on-the-merits decisions for later stages of trials, after gathering evidence, and ultimately for juries. The Supreme Court, thus, robs the jury of its historic role in assessing the veracity of civil allegations. Monday was not a banner day for the American civil justice system.