The judiciary has long been the go-to branch for corporations who don’t think they should have to follow the same laws as everyone else. How else could health insurers achieve near total immunity from the law? How else could employers strip women of their abilty to fight back against pay discrimination, and how else could the corporate sector create a biased system of corporate-owned courts that are virtually guarenteed to rule against consumers and employees? No lawmaker could expect to remain in office if they endorsed such policies, but the Supreme Court, apparently, is shameless.
One big reason that the Court can give corporations such massive giveaways is because their work is buried in complex doctrines and legalese. Voters would rebel against a bill which gave medical device makers total immunity from the law when their defective products kill someone, but when Justice Scalia writes that “the pre-emption clause enacted in the Medical Device Amendments of 1976, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA),” most Americans don’t realize that he’s given the medical device immunity exactly the same immunity.
The mother of all the Supreme Court’s corporate-immunity-through-obfuscation cases may be this year’s decision in Ashcroft v. Iqbal. Traditionally, the justices were very reluctant to kick people out of Court before they have the opportunity to at least gather evidence. Thanks to Iqbal, however, plaintiffs now must jump through a new, potentially insurmountable hoop before they can even seek evidence from their opponent. As the New York Times explains:
For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath. . . .
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.
Our readers who spent the Sotomayor hearings listening to progressives and conservatives alike claim that a judge’s duty is simply to follow the law will immediately see the problem with Kennedy’s standard; what on earth is “the law” when judges are told simply to obey their “common sense?”
The practical impact of Iqbal is that judges now have sweeping discretion to get rid of lawsuits simply because they don’t like them. Moreover, because the federal bench dominated by conservatives–including George W. Bush’s judges, “the most conservative on record“–the rule in Iqbal grants conservatives even more authority than they already possess to substitute their personnal views for the merits of a plaintiff’s case.
To his credit, Senator Arlen Specter (D-PA) has introduced a bill which would overturn Iqbal and restore the old rule. Until such a bill passes, however, powerful interest groups won’t have to argue the law to keep plaintiffs out of court; they’ll simply need to appeal to our right-wing judiciary’s sense of “common sense.”
I learned something new or, rather, old from reading Fallows’ blog. The famous metaphor* — “the fatally slow human response to climate change makes us like a slowly boiling frog” — is not quite right. As Wikipedia 
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