Democratic senators have for months accused the U.S. Supreme Court of stifling civil lawsuits. They've cited, most recently, the Court's 5-4 decision this year in Ashcroft v. Iqbal, which added a new plausibility requirement for lawsuits.
Today, in sometimes tense exchanges, those senators went head-to-head with Gregory Garre, the former solicitor general who argued and won the case almost exactly a year ago.
Garre, now chair of the appellate practice at Latham & Watkins, testified about the case at a Dec. 2 hearing before the Senate Judiciary Committee. He said there has not been enough research to conclude that the Iqbal decision — and the related 2007 decision in Bell Atlantic Corp. v. Twombly — are unfairly restricting plaintiffs.
“We need to know more. We need to know whether meritorious cases are being dismissed. We need to know if these are cases that would have been dismissed before Twombly and Iqbal,” Garre said.
Sen. Patrick Leahy (D-Vt.), the committee’s chairman, said some of that research is impossible because courts are throwing out lawsuits that do not meet the higher pleading standard. “If the cases are dismissed, how are we going to know whether they were meritorious?” Leahy asked.
Garre replied that researchers could at least study whether a case might have been dismissed under the previous standard.
As The National Law Journal reported in September, civil rights groups and others who frequently represent plaintiffs have been organizing to undo the Supreme Court’s decisions. There were more than 1,500 district court decisions related to Iqbal in the four months after it came down in May. Legislation has been introduced in the House and Senate to revert to the previous standard.
Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, was the sole senator in the room defending Garre’s position. He said plaintiffs have too often abused the civil justice system. “We really ought to tighten up this thing a bit,” he said.
Otherwise, Garre was surrounded. Sen. Arlen Specter (D-Pa.) interrupted Garre's answer to a question. John Payton, the director-counsel of the NAACP Legal Defense and Educational Fund sitting to Garre’s right, denounced the Supreme Court’s decisions. And a third witness, University of Pennsylvania law professor Stephen Burbank, criticized Garre for citing research that Burbank considers inadequate: a 156-page memorandum (PDF) from a law clerk to the Judicial Conference’s civil rules committee.
“It is a summary of cases — appellate decisions and a non-random sample of district court cases. It’s not a study. Mr. Garre is confused,” Burbank said.
Garre responded by quoting the chairman of the civil rules committee, U.S. District Judge Mark Kravitz of Connecticut, who told The National Law Journal in September that he thinks judges are “taking a fairly nuanced view of Iqbal.”
Sen. Al Franken (D-Minn.) rebuked Garre at the end of the hearing, accusing him of exaggeration. “I don’t like being told something’s a study when it’s a summary…. Testimony before Congress should be accurate when you talk about something,” Franken said. Garre did not respond.