Blawgletter likes to read Adam Liptak's law-and-journalism Sidebar column. A lot. It offers insights you seldom find. Anywhere.
But yesterday's didn't take us anywhere near our happy place.
The item, "9/11 Case Could Bring Broad Shift on Civil Suits", refers to Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (posts here and here), in which a 5-4 majority held that the "plausibility" pleading standard of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), applies in all civil cases.
Mr. Liptak deems Iqbal the "most consequential decision of the Supreme Court's last term". He also cites dissenting Justice Ruth Bader Ginsburg for calling Iqbal dangerous and two defense lawyers for opining that Iqbal will change the sea on which the barks of civil plaintiffs seek to glide.
Seriously, though. Didn't we already know that Twombly, two years later, applies across the board? The Second Circuit in Iqbal itself grappled at length with Twombly. See "Second Circuit Ponders Twombly Aftermath in 9/11 Aftermath Case". We knew.
So what new did Iqbal do? The column comes closest to the truth when it quotes a law professor. That guy said that Iqbal "obviously licenses highly subjective judgments" and "is a blank check for federal judges to get rid of cases they disfavor."
Let us pause to note that Iqbal didn't unveil any new standard. Test-wise, Iqbal simply parroted Twombly. Twombly – not Iqbal – created the standard.
No, the vice lay in something else — the twists, turns, leaps, contortions, flips, switchbacks, corkscrews, and whirlies the majority (per Justice Anthony Kennedy) performed while clenching Twombly in its teeth. The judicial acrobatics allowed Their Honors to conclude that Mr. Iqbal's complaint didn't plausibly allege that high federal officials condoned abuse of innocent Arabs in the searing wake of the 9/11 attacks by Arabs.
Not plausible, eh?
Indeed, the author of Twombly – retiring Justice David Souter — said the majority "misapplies" Twombly in Iqbal. Uh-huh. A tad late to see that creating a subjective test could lead to . . . highly debatable subjectivity.