Bloodless Coup

Minimalist? Deferential? As If

Linda Greenhouse reviews some of the latest handiwork of the Roberts Court. So much for judicial minimalism and justices merely serving as umpires. They look much more like baseball owners to me - writing the game's rules and deciding who is allowed to come into the ballpark.

I just want to mention two other cases. One is Gross v. FBL Financial Services, which came down last Thursday and was largely overlooked among the coverage of the DNA case Walter talked about. Why did this 5-to-4 decision (majority opinion by Justice Thomas) provoke just about the angriest dissent I've seen from Justice Stevens since Bush v. Gore? Because of the bait-and-switch game the majority played. The court granted on the relatively narrow question of whether a plaintiff in a "mixed motive" age discrimination case has to present "direct evidence" of age discrimination in order to shift the burden to the employer to show that the adverse action - firing, failure to promote, unwelcome transfer, etc. - would have been taken regardless of the employee's age. ("Mixed motive" simply means that the defendant is alleged to have acted for an impermissible reason among other reasons, and since malefactors rarely declare their bad motives, many discrimination cases require peeling back the cover story to get at the truth.)

Having granted cert on this question, the majority then leapfrogged over it to rewrite the rules for litigating an age discrimination case. The court held that the burden never shifts to the employer to explain itself. Rather, the employee-plaintiff bears the burden throughout the case of showing that age was not simply one factor among others but that it was the "but-for" cause of the adverse employment action. The court took this big step without notice to the parties that it was even under consideration. Once it decided to go that route, the court should have invited supplemental briefing or - as would have happened in earlier years - scheduled a reargument so that all parties could have addressed the implications of a potential ruling that will, predictably, make it much harder for victims of age discrimination to survive summary judgment, let alone prevail on the merits. This was a nasty/lazy/shoddy way to proceed. Justice Stevens said it better: "[a]n unabashed display of judicial lawmaking."

Another case that has not received sufficient scrutiny is Ashcroft v. Iqbal, decided May 18. In this 5-to-4 decision (majority opinion by Kennedy), the court dismissed a suit against the former attorney general by one of the hundreds of Muslim men who were rounded up after 9/11 and jailed under harsh conditions in the federal prison in Manhattan. The question concerned the pleading requirements for such a suit - had the plaintiff, Iqbal, presented enough of a case to be able to get discovery. In holding that he had not, the majority relied on an antitrust case from 2007, Bell Atlantic v. Twombly, which raised the pleading bar in antitrust cases by requiring plaintiffs to show at the outset that their theory of the case was not only conceivable and nonconclusory but also "plausible." Justice Kennedy declared that the Twombly case was not limited to the antitrust area but "expounded the pleading standard for all civil actions." Not so fast, said Twombly's author, Justice Souter, in dissent. He said his point in Twombly was to enable a court to dismiss a case at the pleading stage when the plaintiff's theory (of Sherman Act violations) was consistent with lawful conduct as well as with illegality, taking the allegations as factually correct. In the Iqbal case, Justice Souter said, Iqbal's allegations, if true, showed only illegality, and he was therefore entitled to move on to discovery; this was not a Twombly case. Ah, but by a 5-4 vote, it became a Twombly case, and all civil litigation now has to meet a higher pleading standard than Twombly's author himself intended. Another bait-and-switch. Nice.