Tag Archives: Adam Liptak

Souter: Can We Have a Do-Over, Please?

The Times’ Adam Liptak continues his exceptional reporting with a column today on the impact of the Supreme Court’s decision in Iqbal v. Hasty.  Here is an excerpt:

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Liptak also quotes Justice Souter dissenting from the majority’s decision in Iqbal.  What he does not mention, however, is that Souter had authored the opinion that really gave birth to this new “plausibility” standard: Bell Atlantic Corp. v. Twombly.  Whether Souter envisioned when writing Twombly that his opinion would one day be interpreted by his colleagues to impose an even stricter standard of pleading and thus make it harder for plaintiffs to have their claims heard by a jury will probably remain a mystery.  There is little doubt, however, that Souter was kicking himself in Iqbal for having had a hand in that process.

The full story can be found here.

The Emergence of the Roberts/Sotomayor Court and Its Effect on the Rights of the Criminally Accused

Photo Courtesy of TakePart Blog

Photo Courtesy of TakePart Blog

In today’s New York Times, Adam Liptak, the paper’s long-time legal correspondent and now Supreme Court guru, surveys the latest Supreme Court term that just ended this past Monday.  He called Justice Kennedy “the most powerful jurist in America” – an especially scary proposition, since that can only mean more 5-4 decisions for the foreseeable future, with both the “liberal” and “conservative” wings of the Court courting the vote of America’s most powerful and perhaps fickle jurist.

The introduction of Sonia Sotomayor as the Supreme Court’s next Associate Justice will, of course, do little to change that power dynamic.  As Liptak observes:

If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.

The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.

Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.

Sotomayor’s presence on the Court will, however, mean dark days for the criminally accused.  As Liptak himself pointed out, when push comes to shove, Sotomayor has generally sided with the Government in criminal matters.  The fact that Sotomayor received the endorsement of eight national law enforcement organizations is reason enough to be worried.  The Alliance for Justice, a public interest organization, reviewed Sotomayor’s record on criminal matters as a judge in federal court in a lengthy report.  It praised her “cautious style” which, according to the organization, “reveals the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law, while remaining alert to the rights of criminal defendants.”    Judge Sotomayor couldn’t have said it better herself.  More troubling is the fact that Sotomayor is supposed to have lived in areas like the South Bronx whose residents and communities have been ill-served by increasingly harsh and conservative policing and anti-crime policies crafted, as is the case here in Atlanta.  Of course, reasonable people may differ on what “criminal justice” means, and Sotomayor’s current views on the matter are by no means an indication that she has forgotten her roots or those regular joes she often claims to have in mind when crafting her judicial decisions.  Yet it is puzzling that for someone who shares Obama’s newly minted judicial philosophy of empathy for the individual, Sotomayor is all too comfortable siding with the institution and those in power.  Then again, there is little indication she has ever strayed from that circle for most of her adult and professional life.

Barring any last-minute revelations, Sotomayor will eventually take the bench on the Supreme Court.  When she does, Justice Roberts will have gained another ally in his quest to strip criminal defendants of their rights.

- AW