Hearings before the Senate Judiciary Committee began last week to determine if legislative action would be appropriate to overturn the USSC rulings in Ashcroft v. Iqbal and its predecessor Bell Atlantic Corp. v. Twombly. You can find the relevant Judiciary Committee page here. Look to the right hand column to see links to the recently posted opening statements and prepared testimony before the Committee.
How important are Iqbal and Twombly? Well, the title of the ongoing hearings might provide a hint: "Has the Supreme Court Limited Americans' Access to the Courts?" Here is an excerpt from the opening statement by Senator Leahy:
Today, we focus on how a thin majority of the Supreme Court has changed pleading standards. This issue sounds abstract, but the ability of Americans to seek redress in their court system is fundamental. In a pair of divided decisions, the Court restricted a petitioner's ability to bring suit against those accused of wrongdoing. The Court essentially made it more difficult for victims to proceed in litigation before they get to uncover evidence in discovery. I fear that this is just the latest example of conservative judicial activism.
The Judiciary Committee called three witnesses. There were differing views on the meaning and overall importance of Iqbal and Twombly. Here are some excerpts from the testimony of those witnesses:
John Payton, President and Director-Counsel, NAACP Legal Defense and Educational Fund:
[The] ... fundamental principle of open access is now threatened in very real terms by two recent Supreme Court decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Although Iqbal was decided just this year, these decisions already are constricting severely the pursuit of civil rights claims in our nation’s federal courts. By suddenly imposing new pleading requirements that are far more stringent than the longstanding standard set forth in the Federal Rules of Civil Procedure, the Supreme Court has erected a significant barrier that operates to deny victims of discrimination their day in court. This is nothing short of an assault on our democratic principles.
Gregory G. Garre, Latham & Watkins, a former Solicitor General of the United States:
In my judgment, the Twombly and Iqbal decisions are unquestionably important and in line with decades’ worth of precedent at both the Supreme Court and appellate level. It is too soon to say what impact they will have on civil litigation in the federal courts, but they have yet to lead to the wholesale dismissal of claims and are more likely to have an effect on a case-by-case basis. Any legislative effort to override these decisions at this time would be precipitous and unwise…
I am concerned that Twombly and Iqbal may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public law. I am particularly concerned because in rendering them the Court evaded the statutorily mandated process that gives Congress the opportunity to review, and if necessary to block, prospective procedural policy choices before they become effective. Both the process used to reach these decisions and their foreseeable consequences undermine democratic values.
