On December 1, the Senate Judiciary Committee held a hearing to consider legislation that would reverse two recent Supreme Court rulings that heightened the civil pleading standard. The hearing, called “Has The Supreme Court Limited Americans’ Access To Courts?”, was held to discuss the Notice Pleading Restoration Act of 2009 (S. 1504), introduced July 22 by Sen. Arlen Specter (D-Pa) and co-sponsor Russ Feingold (D-WI).
The legislation would reverse Bell Atlantic Corporation v. Twombly, issued in 2007, and Ashcroft v. Iqbal, issued in May. In Twombly, an antitrust case, the Court held that a complaint must contain facts that plausibly entitle the plaintiff to relief instead of mere conclusory statements. The Iqbal decision extended this standard to all civil complaints. The Act would restore the more lenient notice prior pleading standard articulated in Conley v. Gibson, which held that a court could dismiss a complaint only if it appeared without a doubt that a plaintiff would be able to prove no set of facts in support of her claim.
In his opening statement, Senator Patrick Leahy (D-Vt), Chairman of the Judiciary Committee, testified that the two decisions are “just the latest example of conservative judicial activism” and that legislation was necessary to ensure that Americans could access the court system. Leahy stated that the new precedent “will result in prematurely closing the courthouse doors on ordinary Americans seeking the meaningful day in court that our justice system has provided” and noted that “wealthy corporate defendants” “would prefer never to be sued and never to be held accountable.”
The committee heard testimony from Stephen Burbank, a professor at the University of Pennsylvania Law School, who expressed his concerns that the Court’s recent decisions “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.” He testified that “the primary purpose of any legislation responding to the Court’s decisions should be to restore the status quo” “until careful study, enabled by a process that is open, inclusive, and thorough, supports the need for change.”
John Payton, President of the NAACP Legal Defense and Educational Fund, testified that the heightened pleading standards create “a real danger” that “meritorious civil rights cases will be dismissed.” Payton urged Congress to “act immediately” to protect victims of discrimination.
On the other hand, former Solicitor General Gregory Garre defended the Court’s decisions and testified that Twombly and Iqbal were “correctly decided” and “firmly grounded in decades of prior precedent.” Garre warned that permitting cases with “implausible” claims to go forward would result in “enormous costs.”