Ashcroft v. Iqbal

We'll hear argument first this morning in case 071015 Ashcroft vs.

Iqbal.

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about Ashcroft v.

Iqbal.

Javayed Iqbal is a Pakistani national who was picked up in the wake of the September 11th attacks.

He was deemed to be an individual of high interest and was placed in the special housing unit in the Federal detention center in Brooklyn, New York.

He subsequently alleged that he was beaten and denied medical care.

Iqbal made a point in his lawsuit of targeting top Bush administration officials, not just their subordinates.

The Supreme Court threw out the case, arguing that Iqbal had no way of knowing whether the higher-ups were responsible for what happened to him.

Is it plausible to think that after 9-11, high government officials might have used race as one of the bases for sweeping people up.

And the Supreme Court says, We don't think that's plausible.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have blocked out America's sun like a California brush fire.

I am

Peter.

I'm here with Rhiannon.

Hey, everybody.

And Michael.

Hi.

Hello.

Good one.

Good human talking.

Today's case is Ashcroft v.

Iqbal.

This is a case about a Pakistani Muslim man living in Long Island who tried to sue higher-up government officials for the racist treatment he experienced while in custody shortly after 9-11.

But it's bigger than that because what the court held here in a five-four decision didn't just result in his lawsuit getting tossed out.

It also resulted in it being substantially harder for anyone, anywhere, but especially poorer and less educated people, to sue for anything at all.

Yeah.

I should note, we will cover some of the ongoing Trump campaign coup-adjacent shenanigans at the bottom of the episode.

But for now, Ashcroft v.

Iqbal.

This case is fundamentally about a long-standing divide between the left and the right on just how difficult it should be to bring a lawsuit.

Liberals on the court have generally taken the position that bringing a lawsuit should be simple.

If people have a dispute, it's their right to have it resolved.

Conservatives, however, have generally taken the position that litigation imposes a substantial burden on the people being sued and that steps should be taken to curb cases that they believe are frivolous.

One thing that we've discussed a few times in this podcast is the extent to which conservatives on the court rely on procedural mechanisms to protect powerful interests.

And this is Exhibit A.

Every law student in the country learns about this case during week one of civil procedure.

And not only is this case in and of itself a deeply racist product of the post-9-11 atmosphere in this country, it has also shaped how lawsuits are filed.

in America and quietly taken its place as one of the most pro-big business Supreme Court decisions in American history.

Yeah.

So this decision is terrible in at least three ways.

First, very racist.

Very racist.

Second, it makes it exceedingly difficult to hold higher up government officials liable for the programs that they oversee.

And third, it makes it harder to bring any lawsuit moving forward by requiring that lawsuits contain a higher level of specificity than was previously allowed.

So instead of courts being a venue where someone who has been harmed can ask for what's essentially an investigation of what happened, this case holds that the plaintiffs need to show in their initial lawsuit that their claims are plausible,

even though the evidentiary phase of the case has not begun.

That might sound like a minor or technical thing, but it has completely reshaped litigation in this country with a very devastating impact on plaintiffs.

Yeah.

Right.

And what your idea of plausible is probably isn't going to dive with what some federal society goon goon thinks is plausible.

Exactly.

Just a reminder.

So, Ree, walk us through the background here.

Yeah.

So before

maybe getting into like the factual background of the case, I do want to make a quick note about like law school and how law school teaches these cases.

The details I have here about what happened to this man, Javaid Iqbal, in the wake of 9-11 in the United States, those facts don't come from the majority opinion in Ashcroft v.

Iqbal.

The facts don't come from the dissenting opinion, and they certainly don't come from how I was taught the case in civil procedure my first semester of law school.

I don't think it's an overstatement to say that like the holding of this case had far-reaching consequences, like Peter already said, across all civil litigation.

And the fact that it happened while the court and the legal profession sort of ignore, frankly, really important context and facts, it's crazy to me.

And one important aspect of the many effects of this decision is how it contributes to our collective memory of how our government responded to 9-11 inside the United States.

A lot of us were young, so we didn't pay attention or we didn't know.

Or, like, if your only understanding of the government detention of immigrants in the wake of the September 11th attacks was from like reading this decision, maybe the U.S.

government's actions would seem fairly like limited in scope and maybe even pretty reasonable.

I don't think that was actually the case though.

Is that where we're going?

Yeah, that is actually not the case.

So the opinion, for example, starts with the following two sentences.

This is literally how the majority opinion starts.

Javaid Iqbal is a citizen of Pakistan and a Muslim.

In the wake of the September 11th, 2001 terrorist attacks, he was arrested in the United States on criminal charges and detained by federal officials.

Okay, so like just from that,

what is the natural inference here about what Mr.

Iqbal is up to that got him arrested, right?

It seems like maybe he was involved.

Yeah, it seems like he's involved.

It seems like he's a freaking member of al-Qaeda, right?

Like something that he's involved in some way.

So actually, let's talk about the facts, which, you know, I had to do some like real digging and research to find.

So backing it up a little bit, in 1992, Javaid Iqbal arrived in the United States from Faizalabad, Pakistan with a false passport that he got from immigration smugglers.

Now, he made a home in Long Island, and Mr.

Iqbal worked long hours at multiple jobs for about a decade, and he did so to send money to family back in Pakistan.

For example, he worked in Huntington, Long Island as a gas station attendant.

Sometimes he worked for seven days a week.

He opened the gas station at 5 a.m.

He closed it at 10 p.m.

He also worked as a cash register clerk at a 7-11 he made sandwiches at subway he washed dishes at a bar at various times he also worked graveyard shift as a security guard and if you don't think that's tough enough remember he was living in long island

as a brown man can you imagine great boy jesus christ yep but you know by his own account actually

he loved living and working in the united states his favorite job according to him and the one that he had at the time that he was arrested, was as a cable repair technician.

He called himself the cable guy because the cable guy is his favorite movie.

What kind of Pac-Afanny immigrant is a huge fan of the cable guy?

One who loves America.

Yeah, maybe a little too much.

He said in an interview that he loved the work because of the people he met and quote, every dollar makes a difference.

I send money home and I will change my family's life.

Mr.

Iqbal, in fact, married an American woman and lived with her and her children.

The two did end up splitting after about five years of marriage.

And it's important to note that for part of his time in the United States, Mr.

Iqbal was working using a false identity because he was undocumented.

And doing so is, it's a pretty common feature, actually, of many undocumented immigrants working life in the United States.

Right, because you need a social security number to get jobs.

Exactly.

But in Mr.

Iqbal's case, that false identity ends up factoring pretty heavily into the allegations of criminal activity that lead to his detention here.

So less than two months after September 11th, in November 2001, Mr.

Iqbal is unexpectedly,

you know, he has no idea that he was being investigated.

He was arrested by two men who were wearing civilian clothing who just show up at his house one night.

They accused him of lying about who he was and why he was in the United States, and he was eventually charged with identity fraud, basically because he had obtained a driver's license with that false name that he had been using for work and for possessing the false social security card.

Now, that's where his really horrific stay in federal custody begins.

Initially, Mr.

Iqbal is incarcerated at the Metropolitan Detention Center in Brooklyn, and he's kept with the general inmate population for a couple of months.

But at some point, and actually to this day, it remains unclear why this happened, Mr.

Iqbal was added to a list of over 100 federally detained individuals who were supposedly connected to the September 11th investigation.

So, like, for example, there's an FBI list from early 2002 that identifies Mr.

Iqbal, but it notes only that he was using a fraudulent passport and was charged with making false statements.

And that was in the section that was supposed to provide a factual narrative of the case.

So it's really unclear why he was ever attached, you know, to the investigation of terrorism from September 11th.

So again, without knowing why, but

likely related to him being on this list, Mr.

Iqbal was transferred in January 2002 to the Administrative Maximum Special Housing Unit.

That's also known as ADMAC's shoe or just the shoe.

And he's kept there for the next six months.

And what followed was really just awful abuse to him personally, as well as to the group of Muslim men that is detained in the same conditions at this time.

So the night he was transferred to this, you know, heightened security isolation housing, Mr.

Iqbal was severely beaten by multiple officers.

They kicked and punched him.

They threw him against the wall.

He was left bleeding from multiple places on his head and face.

And then in March, he was subjected to another severe attack.

And this one was in retaliation for Mr.

Iqbal protesting the fourth strip and body cavity search of that day.

He was left bloody after that attack after being, you know, badly beaten by officers.

And an officer also urinated in his cell and then shut the water off so that Mr.

Iqbal couldn't flush until the next day.

And Mr.

Iqbal's repeated requests for medical attention, because he is severely injured, obviously.

Those requests are denied for more than two weeks.

I just want to say something, and this isn't really, you know, not meant anything towards you, but I just, the term body cavity search sounds so like sanitized to me.

I feel like it's sexual assault, right?

Like if you're body cavity searching someone four times a day, that's just fucking assault.

That's absolutely right.

And they do it too to like specifically to Muslim detainees because of like religious conceptions of like modesty and stuff like that.

Right.

So that kind of physical abuse, the beatings, that doesn't even really touch the day-to-day harassment and abuse that Mr.

Iqbal and other Muslim prisoners received.

Being caged in the shoe, that means that they lived in lockdown in isolation for 23 hours a day.

The remaining hour that they were permitted to be outside their cells, they were handcuffed and had leg irons on them.

And they were always accompanied by a four-officer escort escort team.

On rainy days, Mr.

Iqbal was left outside until he was drenched, soaking wet, and then when he was brought back to his cell, guards would turn the air conditioning up so that he would be really cold.

On cold winter mornings, the jailers would take groups of Muslim prisoners outside without clothes, and they made fun of them while they tried to keep warm.

Like I said, strip and body cavity searches, I mean, what is actually a sexual assault, were routine to all of these prisoners.

And Mr.

Iqbal was also deprived of adequate food and subjected to such harsh treatment that he lost more than 40 pounds over just a few months.

Jailers routinely refused to let him and other Muslim prisoners pray,

saying that they don't allow terrorists to pray.

And other verbal abuse was super common, you know, using dehumanizing and pejorative language, saying to Muslim detainees, like stuff like, this facility is where terrorists come to die.

You're never going to go home.

Your family, your country is going to be decimated.

This is what you get for attacking America.

Those kinds of things.

These guys are also from Long Island, apparently.

Yeah.

Eventually, Mr.

Iqbal pleads guilty to one count of using the false social security card.

And after he finishes his sentence, he is deported to Pakistan.

and he signs voluntary removal paperwork where he agrees basically that he will not come back to the United States for at least 10 years.

Wait.

So.

Wait.

The guy who was, what, shackled, beaten, starved, raped, and tortured, voluntarily left the country and said he doesn't want to come back.

Yeah.

I'm shocked.

That guy's not banging down the doors to get back in here.

Yes.

Yeah.

He

at that point didn't,

you know, he just didn't believe that the American government would let somebody stay who had been labeled a terrorist or investigated as a terrorist.

And he was like, yeah, get me out of here.

Right.

Right.

I mean, you'd never be safe here again.

Right.

Exactly.

So he was like, get me out of here.

And so once he gets back to Pakistan, Mr.

Iqbal sues.

He sues based on the racially motivated discrimination and abuse that he suffered while he was in federal custody inside the United States.

So, more specifically, he sues a couple of higher-up government officials, John Ashcroft and Robert Mueller.

I don't know if you guys know about him.

Hey, that name sounds familiar.

Yeah.

Saying that they oversaw and helped implement a discriminatory program that targeted Muslims, right, and targeted people from the Middle East.

But the court rejects Iqbal's allegations, saying that they aren't plausible because there was no way that Iqbal could be sure that Ashcroft and Mueller had overseen the discrimination in the program.

And the fundamental legal question here is very simple.

How specific does a lawsuit have to be?

In other words, Everyone knows you can't file a lawsuit that is purely frivolous.

If I sued Michael for wearing a shirt I didn't like, the court would throw it out because that's not illegal.

When you file a lawsuit, you need to describe what the person you're suing did that was illegal.

But the question in this case is how specific do you need to be when you do that?

Right.

Until this point, the courts had always said that it's enough that the allegations you make give the defendant enough information that they could reasonably understand the complaint and respond to it.

But this case changes that standard for all future cases and raises the bar for future plaintiffs who want to bring a case.

Right.

Procedures in the federal courts are governed by the federal rules of civil procedure, the bane of every first-year law student's existence.

And all they say about this is that a lawsuit must include a, quote, short and plain statement of the claim showing that the pleader is entitled to relief.

And the rule specifically says that, quote, detailed factual allegations are not required.

And despite the fact that the rule itself says you don't need anything specific, the Supreme Court holds in a five to four ruling with a majority written by Justice Anthony Kennedy that that federal lawsuits must state what it calls a plausible claim for relief.

And the court says that Iqbal, who alleged that Ashcroft and Mueller oversaw a discriminatory program, did not do so.

So again, Iqbal is arrested in a fraud case in November in 2001.

He is deemed a person of high interest in the September 11th attacks, and as a result, is placed in a special maximum security section of a prison where he is physically and verbally and sexually abused, denied medical care, denied his ability to engage in religious activity, and denied access to counsel.

What he claims in his lawsuit is that being made a person of high interest in 9-11 and subjected to this treatment was the result of a policy either directed or approved by Bush administration officials like Ashcroft and Mueller that discriminates against Muslims and Arabs.

And what the court says first is basically that high-ranking government officials like them can't be held responsible for the illegal conduct of their subordinates in this context.

And usually in the law, there's a concept called respondit superior, which means that if you are a manager, if you're someone in charge and your employees, the people who work for you, do something illegal, generally speaking, you'll be held responsible.

And the court's basically saying, no, that doesn't apply to these government officials, which is a pretty weird position because as the dissent points out, Ashcroft and Mueller themselves admitted to the court that they could be held responsible.

They literally conceded that they could be held liable, at least theoretically, but the majority just ignores that, pretends they didn't actually concede the point.

So as a result, the opinion is sort of predicated in large part on an idea that even the government admits is false.

Yeah, exactly.

And the court taking on an issue that both parties agreed upon is really like out of bounds, especially for the more formalistic conservatives, right?

The only reason they're doing it here is to go to bat for the Bush administration in a circumstance where there might be questions about their liability for their conduct in the war on terror.

And, you know, we've said before on this podcast that Anthony Kennedy is not the brightest crayon in the box, not the sharpest tool in the shed.

And when he's talking, this is just a stupidly, needlessly offensive part of the opinion, I think.

When he's talking about Respondiat Superior, he defines it in the majority opinion by saying like, it's a part of the law, quote, where masters do not answer for the torts of their servants.

I'm like, can we think of a single fucking metaphor for explaining something that doesn't like harken back to when people owned slaves?

Like, why, why are we doing that, Anthony Kennedy?

Why can't he just say subordinates?

It doesn't make sense.

He's just so stupid.

Masters and servants is just classic conservative, like, legal scholar-type language where they can like pretend that they're using sort of like terms of art, but in reality, they just enjoy saying it.

Right, exactly.

Just has a nice ring to it.

So the court then says, look, you know, even if Ashcroft and Mueller could be held responsible, you're saying that they knew about this discriminatory policy, but you don't know that.

You're just guessing.

And the court says that that's not enough for a lawsuit.

Which, you know, raises a big issue, which is, of course, he fucking doesn't know, right?

Like, no one's ever going to know for certain what the higher up government officials are engaging in, especially when they're engaging in wrongdoing.

They're not going going to be like air.

Well, in the Trump era, maybe they will be like airing that publicly.

Lots of smoking guns in this administration.

Yeah, but for the most part, it's a pretty safe bet that you're just not going to know what's happening.

And since there's no real way to have access to that, this decision serves as functional immunity from civil lawsuit.

for higher up government officials.

All they have to do is like basically cover their tracks.

And when you think about the other legal immunities available to them, like qualified immunity, which we've talked about, it's essentially impossible for a citizen to hold them accountable under this rubric.

So this creates a problem where someone can experience the output of a racist system, in this case, his discriminatory treatment in federal prison, but they can't do anything about it because they have no vision into the system to see who is ultimately responsible.

The court is basically saying that if government officials can cover their tracks well enough, there's nothing you can do because you're just sort of guessing about what the government officials did.

Right.

But also, like, it's pretty fucking obvious that this dude was subjected to a racist policy of some kind, right?

Like, he's not really guessing.

Right.

This guy was originally jailed for using a false social security number when he was like working at 7-Eleven.

He's then deemed a person of high interest in 9-11.

And by the way, as far as I'm aware, the government has never explained why that was the case.

And I think we would have heard about it if there was a real good reason.

Right.

if he planned 9-11 i think they would have said that right like there would be a story he would still be in fucking guantanamo bay if he was actually involved in right

right exactly of course the most likely explanation for what happened here is they saw a muslim guy committing identity fraud in the general vicinity of 9-11 and figured you know fuck it better safe than sorry let's lock this guy up right which is absolutely discrimination on the basis of his race and religion exactly

absolutely we also know that that shortly after 9-11, the government was extremely frivolous with its designations of, you know, quote-unquote persons of high interest in the September 11th attacks.

So, like in 2003, the Department of Justice published a report on the detention center that Mr.

Iqbal was being held in.

And that report found that the FBI and INS made little attempt to differentiate between detainees who were and were not affiliated with terrorism.

And also that the methods the government used to identify persons of high interest were both imprecise and inconsistent.

Right.

And, you know, the court does not address any of this.

Instead, Kennedy does his own sort of like half-baked analysis where he basically says, like, in so many words, look, obviously, anti-terrorism efforts are going to disproportionately impact Muslims because,

you know, Muslims did it.

Right.

Yeah.

You know, to make an anti-terrorism omelet, you got to break a few Muslim civil rights eggs.

That's the challenge.

That's the basic.

It's basically as close to like a Fox News talking point as you can get.

The general philosophy of the conservative movement at the time was just like, let's get them all.

Like, fuck it.

We're going absolutely nuts at these people.

Who was it who said the sand was going to be glowing green?

Yeah.

The conservative position after 9-11 was nuke the entire Middle East.

The moderate conservative position was like just Afghanistan.

And then it goes down from there.

Invade the entire Middle East, right?

That was the Middle East.

Like George W.

Bush was like taking the leftmost position of the Republican Party when he just invaded two countries.

Right, exactly.

So the court's position is a...

total dodge.

The question isn't whether this disproportionately impacts Muslims.

It's whether it's targeting Muslims regardless of any tangible connection to terrorism, which, of course, it is.

100%, no questions about it.

Exactly.

This guy was a fucking 7-Eleven clerk that got thrown into federal prison right after 9-11 and is

being called a terrorist by guards.

We don't need to pretend that we don't know what this is about.

Exactly.

Right.

It's also important from a legal perspective to understand that what Kennedy is doing is questioning the accuracy of the lawsuit that Iqbal filed.

But that is sort of procedurally improper.

The court, when litigation is first filed, is supposed to assume that the allegations are true.

So if you take the example example I provided earlier where I'm suing Michael for wearing a shirt I don't like, the court dismisses that because even if you assume it's true, he's still not breaking the law.

But the key is that they still have to assume that it's true.

Kennedy isn't doing that.

He's sort of interrogating whether or not the allegations are correct.

But that's not the court's role.

That's what discovery is for.

Discovery is the stage of litigation where you identify and review evidence, and the court isn't even letting it get to that stage.

Yeah, and something that just occurred to me is that Kennedy and the conservative majority, they're not just not taking the allegations as true.

They're not just like sort of questioning the accuracy or veracity of Mr.

Iqbal's allegations.

They are questioning those things, but then giving the benefit of the doubt to the government's reasons for picking up, for detaining all of these immigrants.

Right, their justifications, yeah.

Exactly.

And you can see this in the opinion, right?

Like there's a part of the opinion that's particularly sort of

like, wait, what?

Like, are you a Fox News commentator?

It goes like this.

The September 11th attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al-Qaeda, an Islamic fundamentalist group.

Al-Qaeda was headed by another Arab Muslim, Osama bin Laden, and composed in large part of his Arab Muslim disciples.

It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate incidental impact on Arab Muslims.

Incidental, yeah.

And he goes on, on the facts that Mr.

Iqbal alleges the arrests Mueller oversaw were likely lawful and justified by a non-discriminatory intent.

I'm so angry.

I love that they keep saying Arab Muslim when everyone involved is Saudi.

That's because the sponsors of the next cocktail party that the Federalist Society was hosting was some collection of Saudi princes.

But also, this guy is Pakistani, which they like mention in the first line and never again.

It's like very fucking bizarre.

Right.

This man is not Arab.

Yeah, for our less educated listeners, Pakistan's South Asia, not considered an Arab country.

Right.

Exactly.

Ethnically different.

Right.

So that quote to me just goes to show like how much work the court is doing doing for the government

when actually they're supposed to be taking Mr.

Iqbal's allegations as true.

Right.

They call it a legitimate policy when whether or not it's legitimate is like precisely what's in question in the law.

That's the question of whether this policy was legitimate or discriminatory.

Right.

And look, this outcome isn't really surprising, right?

This is where we land.

Obviously, like Peter was saying, this is like, you know, a period of like anti-Muslim hysteria generally and especially on the right, but across the ideological spectrum.

And, you know, it's very consonant with our history as a country.

We've seen discrimination claims go right out the window during wartime many times in the recent past, most infamously when the Supreme Court blessed Japanese internment during World War II.

Right.

We've also talked on the podcast about like harsh anti-communist immigration decisions during the Cold War.

Yeah.

And this is all, I think, part of a larger phenomena in conservative politics generally and in conservative legal circles as well.

The technical term for it is bootlicking.

The output of bootlicking is effectively giving up on the rule of law in times of a quote-unquote emergency in wartime.

It doesn't happen by accident.

There are some prominent conservative academics, Eric Posner and Adrian Vermeule.

Perfect Perfect villain name.

Yes.

Well, they are both freaks in their own special ways.

But so they wrote a book after 9-11 called Terror in the Balance, where they argued in emergencies, look, the executive is well-suited to gauge the appropriate balance between civil liberties and security.

And courts are ill-suited to second-guess that judgment.

And so basically, look, courts should just let the fucking president do whatever he wants.

Like, just go wild, man.

Right.

Yeah.

They love this.

Conservatives always pose this hypothetical where they say like, do you really want the courts making national security decisions?

And they like try to suggest that the executive branch is better suited to it.

But that's missing the point, right?

Which is we should avoid placing excessive discretion in the hands of any one branch of government.

And they should be pushing and pulling at each other to avoid like abuse of their own power.

And the other aspect of this is like, they are saying, like, do you really want the courts making national security decisions?

It's like, well, do you want some fucking moron like George W.

Bush or Donald Trump making them?

Because that's the alternative, right?

Exactly.

There's no great answer here, right?

Right.

The real question is, do you want a check on the power of those morons?

And like, yes, exactly.

Yes, I do.

Right.

But these guys don't.

And they believe so strongly in that that they wrote a fucking book about it.

Like, yeah.

I find the idea offensive in general, but it's hard for me to wrap my head around being like so possessed with the idea that the government should be able to just trample everyone's civil liberties that you write a fucking book about it.

Then you're like, this idea needs to be out in the world with my name on it.

Everybody needs to know this.

Yeah.

Oh, by the way, Vermeule is currently serving in the Trump administration.

Great.

And like somebody that oversees the entire administrative state.

So, you know, no biggie.

You know, these guys are like leading conservative intellectuals.

Yeah, it's as good as you're going to get.

Yes.

It really is.

This is the best and brightest.

They are like the cream of the crop.

And And so they shrug off the idea, like there's a common complaint here, right?

You see, which is that, like, look, if you sacrifice civil liberties during times of war, you'll never get them back.

Once they're gone, they won't come back.

And they shrug it off and say, no, that's not fucking true.

Just as the emergency fades, like things will get better.

Courts won't defer to the executive as much.

That's why airports are great now and you can just walk right through them.

Exactly.

Yeah.

Right.

The last two decades put the lie to that thesis like so comprehensively, right?

Like our entire society has been restructured around like a permanent war footing and it'll take decades to undo it if we can do that.

Exactly.

And so circling back to this case, this is like a perfect example of how fucking wrong they are and how fucking wrong conservatives are on this point.

Like the court is doing what they say.

It's eliminating itself from the discussion about what is and isn't appropriate executive behavior in a time of national emergency and saying, look, you don't even get to look into this.

We don't even get to hear this lawsuit because you need to have like fucking ESP and be able to read the minds of John Ashcroft and Bob Mueller before you can sue them for this shit, which effectively makes it impossible to sue.

And this insurmountable bar has stayed in place for over a decade now.

It didn't fade.

It hasn't gotten better.

And it hits on every corner of the law.

Like we were saying before.

It goes everywhere.

It hits civil rights litigation in all respects, not just discrimination and war.

And this is precisely how this shit works.

Civil liberties just get eroded the longer we're on this war footing.

And this is like maybe the quintessential example of that.

Trevor Burrus, Jr.: And so this is where this case goes from being about the mistreatment of Iqbal himself to something that transformed litigation in this country.

in a way that benefits large corporations and other powerful interests.

In simple terms, this case made the bar for how detailed your lawsuits allegations have to be quite a bit higher than it was, which makes it harder to bring a successful lawsuit.

More specifically, it gave the courts the green light to do what Kennedy is doing and sort of like question the allegations of the complaint before any evidence has actually been gathered.

And this has resulted in courts dismissing lawsuits with a substantially higher frequency than they used to.

Plaintiffs like Iqbal don't always have all of the facts at their disposal when the lawsuit is filed.

And the standard that the court is creating here essentially leverages that against them.

Yeah.

A good example of how this works is in discrimination cases.

So let's say you were fired and you think it's because you were black or a woman and you want to file a lawsuit.

90% of the time, you're not going to have specific evidence that that was the case, right?

No one's going to say, oh, I'm firing you because you're black.

I'm firing you because you're a woman.

That's not how discrimination works in reality.

The purpose of having a court case is to determine the truth of the matter, to figure out what actually happened.

But because of this case, courts will often toss out cases that aren't specific enough about how they were discriminated against when the lawsuit's filed.

So companies can often get these cases tossed out before the court even sees any evidence.

Exactly.

So if you're not a lawyer, you might be wondering, like, who does this help?

Who does this hurt?

And in simple terms, it helps large companies the most because they defend a lot of lawsuits and it makes it easier to throw lawsuits out.

And, you know, when you're consistently defending lawsuits, getting an extra 10 or 20% of them thrown out is worth a fortune.

That's why I stated up top that this is maybe on balance, one of the most business-friendly decisions in history.

And I don't think that's an exaggeration.

Yeah.

Obviously, the corollary is that this hurts plaintiffs.

But more specifically, it hurts unsophisticated plaintiffs.

Wealthier people who have access to more expensive lawyers, they're going to be much less troubled by this standard because those lawyers don't have as much trouble navigating all of this and putting together a lawsuit that can hold up to the higher standard that we get from Ashcroft VICBAL.

But people who can't afford lawyers or who frankly can't afford good lawyers run into the most trouble here.

It's a really unforgiving rule that basically punishes people who aren't familiar with the legal system.

And

it also is extra protective of large companies and the government for the reasons that this case makes clear.

People have limited vision into big organizations, so it's it's hard for them to specify in their lawsuits what exactly the organization did.

Right.

So if you have a large company or the government, you're not in the room with Bob Mueller or John Ashcroft when they're designing some policy that ends up being racist.

Exactly.

You're not going to have that sort of access to that information.

This case allows your lack of access to result in your case getting tossed out because you're not allowed to get to the stage of litigation where you can actually get evidence and find out what happened.

Right.

And we should talk for a moment about what a better system would look like.

There's a very reasonable middle ground here, which to be frank is like where the courts were before the Supreme Court changed the standard.

The question is, how specific does your lawsuit have to be?

And it used to be specific enough that the other party would have notice about what you were talking about.

And now it's pretty specific.

Is it plausible?

That's completely different.

That's a much higher bar.

Basically, my view is that if a lawsuit seems to identify illegal activity and is not completely speculation, it should be allowed to continue.

Period.

That should be really the end of it.

The legal system is supposed to be a way for us to address wrongdoing among private parties.

So why should the courts stand in the way of that?

The whole point of litigation is for evidence to be found and reviewed and analyzed so that people can draw conclusions.

And this case has allowed courts to essentially draw conclusions before any evidence is presented.

Exactly.

Right.

And I want to take a minute to call out an underrated way in which the conservatives are just full of shit here.

Yeah.

This isn't a constitutional decision.

It's not a statutory interpretation decision.

This is a case supposedly interpreting the rules governing the federal courts, the federal rules of civil procedure,

which that is all technically under Congress's legislative powers.

But there's a law about this called the Rules Enabling Act, which basically gives that power.

to write these rules to this committee of judges called the standing committee.

And everybody agrees that this case changed that standard.

There's a reason why it's cited 85,000 times.

It's the way it's taught in law school.

It's the way everyone understands it.

It was the entire fucking point.

They rewrote the rule.

And here's the thing.

There's a process for rewriting the rules of civil procedure, and it's used regularly.

There's like an advisory committee to the standing committee and they take suggestions from academics and lawyers.

They review them.

They maybe propose publicly a draft.

They take take comments from activist groups and academics again, and then they move that up the ladder.

And then the standing committee, if they like the rule, then they move it up the ladder to the judicial conference.

And if they like it, and that's like the heads of all the circuit courts of appeals and a bunch of district judges, if they like it, it goes to the Supreme Court, and the Supreme Court can veto it.

And if they like it, then it goes to Congress.

And if Congress doesn't veto it, then it becomes a rule.

This is a long process that requires broad buy-in across the ideological spectrum, a ton of public comment, a ton of advance notice.

And the Supreme Court's like, well, yeah, fuck that, though.

Fuck you guys.

Right.

Fuck everyone.

We're rewriting this rule the way we want it, and there's nothing you can do about it

because courts have to listen to us.

And we have veto power.

If the standing committee wants to come and rewrite the rule and say, no, actually, you guys got it wrong, we can just fucking veto them.

Yeah.

Right.

It's pure, pure, purely gatekeeping.

That's it.

Yeah, exactly.

They are leveraging their position in this whole fucking system to bypass this elaborate process and enact their own agenda.

It's pure policymaking and a pure exercise of political power.

Yep.

Right.

On a bright side to this, though, that means that it can be overturned.

Very simply.

Legislation can overturn it.

There was actually legislation to overturn it in 2009 in both houses of Congress.

I don't know why they died.

And I don't know if there's any movement movement.

Like, you know, if Democrats take the Senate, they're not really talking about Iqbal anymore like they were back then.

So who knows?

Right.

So, you know, we should talk about what's driving this.

We've mentioned once before, I think, that conservatives sincerely believe that the legal system is unfair to corporations and powerful people because they are often stuck in litigation.

And so, yeah, they're constantly defending against lawsuits, and that's expensive.

And they just think that's bullshit, right?

They hate it.

Right.

So, what conservatives have done is engage in what is essentially a PR campaign, right?

We've talked about this a bit in the past, too.

How many times have you heard that America is an overly litigious society, that there are too many frivolous lawsuits?

And we're in need of tort reform.

And

that is based on an orchestrated PR effort by the right.

They latch on to specific lawsuits, distort the facts to make them seem more frivolous than they are, and use them to promote the idea that litigation in this country is out of control.

They did it

maybe most famously with the McDonald's hot coffee lawsuit, which was, when you look into the details, an incredibly legitimate case that still stood out in the popular consciousness

for decades as it's sort of the exemplar of frivolous litigation.

There's also this famous story, which you've probably heard in some form or another, of the burglar who fell through a skylight.

and sues for his injuries.

Yeah.

That occurred in the early 80s.

It was substantially more nuanced than it first sounds.

It was a kid on the roof of his high school fell through and these windows that were just, I think they were like painted on.

Literally, just some nonsense.

They were very poorly maintained windows that should have been maintained better legally.

And the school settled for money.

This is still being used 40 years later to promote the idea that lawsuits in this country are out of control.

Right.

Yeah.

So what conservatives have done is promulgate and leverage this idea of an overly litigious society to suppress one of the only avenues of redress that ordinary people have against powerful interests.

To corporations, lawsuits are just part of the balance sheet, right?

They're a financial nuisance.

For a lot of people, though, they're the only way to obtain some justice, to recover what they've lost.

But conservatives on the court treat that as if it's just petty, right?

As if every lawsuit is simply a business transaction.

Because if you spent your career representing powerful interests, that is all you've ever understood lawsuits to be.

Exactly.

That's the disconnect that can't be repaired.

Their idea of what is fair will always be tainted by the power they hold.

That's why they can sneer at the plight of Javaid Iqbal, who was tortured by the federal government because of his race and religion, and at the same time express this like deep concern for the desire of the government and big business to operate as smoothly as they would like to operate.

Yeah.

You know, something that that connects to too is another idea we've talked a lot about on the pod, which is that the conservatives couch these decisions as purely procedural decisions, not substantive.

This isn't about this person's rights.

This isn't about vindicating somebody who has been harmed.

This is just procedure.

Sorry.

And I've just been really moved by learning more about Mr.

Iqbal's story and finding those facts that were not included in the opinion.

It just reminds me that procedural decisions really contribute to shaping broader narratives that ultimately influence substantive rights.

So like when you hold as the Supreme Court that pleadings have to be plausible and that Mr.

Iqbal's pleadings here are not plausible, they're not specific enough, what you're saying is that this discrimination on the basis of race and religion by high-ranking officials in the U.S.

government is implausible, right?

It's just not believable.

And that contributes to broad understandings of what happened, whether people's rights were violated, what it is people can be upset at the government for, you know, all of that.

It legitimizes the government practices that were at issue.

And for the thousands of Muslims who were interrogated, or questioned, or detained across the U.S.

after 9-11, many without cause or connection to any terrorism allegations, like that's a really big deal.

What the Supreme Court says and does, it's incorporated into legal canon, often uncritically so.

And this means that the narrative of what this case is about-a narrative that minimizes racist violence perpetrated by the government-that narrative is perpetuated in legal practice across the country now.

Right.

That's right.

Next week.

So I don't think this episode would be complete if we didn't check in on the Trump campaign's tiny little coup.

Ongoing soft coup.

Little baby coup going on.

We've got a few things happening.

Rudy Giuliani's humiliation in the Pennsylvania case.

Right.

The sort of potential for some electoral college shenanigans and the Sidney Powell complaint in Georgia.

Right.

All of it looking very, very pathetic in my view.

Right.

You may have thought the coup was off when they started to formally recognize the Joe Biden transition, but the coup is still on and still pathetic.

Still a joke.

It's been an interesting couple weeks.

We've had quite a bit of flailing on the part of the Trump campaign.

Rudy Giuliani just

absolutely tanking what was left of his career.

At this point,

like 50-50 shot, he just gets departed when this is all done.

You can't even do fascism, bro.

It was very embarrassing.

His performance at Oral Argument, just the stuff of legends, one of the worst performances you're going to hear out of an attorney that has like that kind of experience.

Sidney Powell, the Trump campaign distanced themselves from her, and then she filed, I shouldn't even say one of the worst complaints I have ever read in my life in Georgia, spelled the the name of the court wrong multiple times in the header which should be a copy and paste situation right for most attorneys and then it was literally just like a conspiracy theory Facebook post except like extrapolated out to a hundred pages just one of the wildest things I've ever read nothing even resembling a real solid complaint no it also looked like parts of it were copy pasted off like a website or something where like the formatting was weird.

So like one line would have like three words with massive spaces between them.

And the next line would have like 30 words all mushed together in one word.

Just like literally, just like, and as you can see from the affidavits attached to it, like just one long line of words.

Very weird.

I've never seen anything like that.

Listen, when you're vibing, you know, when it's 3 a.m.

and you're trying to meet a deadline and you're just vibing, you just got to

slow.

Who needs the fucking space bar?

That's the clowns.

And yeah, the only evidence, by the way, like they didn't attach a lot of real evidence to the complaint.

The only evidence they attached were affidavits, which are just sworn statements by people.

So just like random fucking morons who were like their poll watchers, being like, Yeah, I saw some shady stuff when I was watching the polls.

You can read the affidavits, and like none of them seem to come close to like concrete allegations that make sense.

Most of them involve like what is clearly a hyperbole.

Like they'll say, like, all of the ballots were tainted and like stuff that's just like not something that I would describe as a factual statement.

All of this extra funny, mostly because if you've been deep in the right-wing hive mind ever since the election, which I have been, one of the big themes was like, look, this all seems like it's not going well now, but wait until Sydney and Rudy really going.

The secret evidence.

When they drop their case,

you'll see, and the tides are going to turn.

Right.

And these fucking

just like

wine and Xanax addled morons

just like toss a bunch of papers at the court and they're like, here it is.

And that's it.

It's just the most incoherent bullshit you've ever seen.

It's a pleasure to watch, I got to say.

You know, it's a basic and kind of short thing that as a lawyer, you're taught, but you see, in circumstances like this, like how important it actually is.

The party that makes it kind of easier for the judge to do what they're asking for is going to win, but they can't even do that, right?

Because they're pleadings on their face.

It's just a mess.

Yeah, maybe, because I mean, this is our Iqbal case, and maybe it's worth noting the Giuliani case, which at the time of recording has been dismissed by the Third Circuit and might go to the Supreme Court.

That's a case about the pleadings, about the specificity of the pleadings and whether they have alleged something plausible.

So I think the funniest outcome here is that the Supreme Court overturns Iqbal just so that Rudy Giuliani can win.

It would be incredible.

It would.

I do want to note that in Pennsylvania, at the time of this recording, at least, the next phase, if you can't get relief from the court, is like what we discussed in our episode on the Electoral College, like state legislatures just appointing electors or trying to, at the very least.

And there's some indication in Pennsylvania that they might do that.

Senator Doug Mastriano tweeted that he was going to introduce a bill for them to appoint their own slate of electors.

Right.

Yeah.

To highlight how much this is a clown show as well, he tweeted that there were some numbers posted on the Department of State dashboard that have since been deleted, showing Pennsylvania official votes that would show Donald Trump, you know, winning the election and only 2.5 million mail ballots being mailed out.

And he says, well, like Joe Biden, supposedly, there were like 3 million mail ballots in the general election tally.

And so clearly, there are all these votes being manufactured out of thin air.

Yeah.

The issue being that he tweeted numbers from the primaries.

Beautiful.

Beautiful.

You know, this is precisely this sort of like how disconnected from reality it is.

Yeah.

But at least at the time of this recording, it does seem like they're going full steam ahead.

They don't care.

Right.

Yeah.

I mean, you know, they need to pass the state legislature, which my guess is would be a tough hurdle.

I mean, I don't think this is going to happen.

I think this will fizzle out just like the court cases have.

Right.

If they did, though, I mean, if it passed the state legislature, then all of a sudden we have a very interesting issue.

I just don't think it gets there.

Right.

Like, can the governor even veto it?

That would be a Supreme Court case, I think.

Yeah, that would be a Supreme Court case.

And I think the legislature wins, just sort of eyeballing it.

I, you know, it would depend on what exactly the arguments are.

But based on my understanding of their understanding of the Constitution, it feels like something the Republican state legislature would win.

I don't think we get there, but.

There are a number of judges who've said specifically they think they hold a special place in the constitutional order on this stuff.

And then we would get into like madness.

It's not really clear under the law what happens when there are two slates of electors.

It would be extremely funny to me if this goes to the Supreme Court and there's just like this massive constitutional crisis.

But at the end of the day, Joe Biden has like 286 elections.

Right.

It's like for what?

Yeah, I don't see this happening in enough states.

It does does also highlight another point I want to make, which is like after our last episode, we got a lot of comments from people who thought we are a little too like blithely optimistic, actually.

A more cynical take on the court than us, which is surprising, of course.

You know, and how do we square this, right?

How do we square the idea that like we always say it's all politics at bottom and it's about the exercise of power?

with sort of just assuming the courts are going to toss all these cases out and laughing about it.

And a point I want to make on that goes back to our very first episode when we discussed why we wanted to do this.

And I think all three of us said, at the very least, I know I said, and I'm pretty sure Re did, that we felt like the court puts up a facade, a facade that gives it legitimacy.

Part of that is like the way they format their opinions and the citations

that make them, you know, opaque and impenetrable to lay people and give them an air of legitimacy.

And we felt like we had to do something like this in order to strip away that facade so people can see the brute power that underlies it.

Right.

You wouldn't need an hour-long 5-4 episode.

You wouldn't need a season of fiasco to understand that the Supreme Court giving Donald Trump his election is a raw exercise of power.

It would fully delegitimize the entire 40-year project of the federal society.

It would be done.

There would be nothing left.

And it's, again, it's not even clear that they would still be able to do this, even if the court ruled that way.

You know, you'd still have to have Congress counting the electoral votes, and there would be riots and violence.

And it's totally antithetical to their purpose.

What they're trying to do here is do this under the cover of law.

Right.

Right.

I think one thing that sometimes people don't get is like cynicism doesn't always mean the worst thing happens.

Right.

You have to think about the ways in which power intersects with the law and the practice of law and think about what the most likely scenarios are.

And in this case, it is very, very unlikely that you see something like state legislatures rising up for the cause of Donald Trump.

Even if you have these nut job true believers

all throughout their ranks, it's just not something that makes sense sense for the Republican Party as a whole, for the courts, etc.

And that's why we are optimistic, if you can use that word

to describe us in any real sense.

Next week is Roman Catholic Diocese of Brooklyn v.

Andrew Cuomo.

Governor of New York, this is the case that just dropped about New York's COVID-based restrictions on houses of worship in the state.

Yeah.

It's going to be great.

I'm excited to do the episode.

I'm excited to go to church.

Finally.

5-4 is presented by Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Napok and Andrew Parsons.

Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.