Implausible Realities: Iqbal's Entrenchment of Majority Group Skepticism Towards Discrimination Claims

In Ashcroft v. Iqbal, handed down on May 18, 2009, the U.S. Supreme Court held that Javaid Iqbal failed to plead sufficient facts to support the allegation that he had been arbitrarily and unconstitutionally classified by the federal government as a person “of high interest” and detained in a maximum security facility after September 11th, 2001 because of his race, religion, and national origin. In affirming dismissal of the complaint, the Court noted that the facts alleged did not “‘nudge[] [the plaintiffs'] claims' of invidious discrimination ‘across the line from conceivable to plausible.”’ Iqbal ostensibly extended to intent-based civil claims the Supreme Court's earlier decision in Bell Atlantic Corporation v. Twombly, mandating that pleadings in antitrust cases must allege enough facts to plausibly “sho[w] that the pleader is entitled to relief” under Rule 8(a)(2) of the Federal Rules of Civil Procedure. To say that Iqbal modified the pleading standard in certain types of cases would be a dramatic understatement. The decision profoundly transformed the jurisprudential landscape, shifting the course of lawsuits nationwide. A cursory glance at the ruling's rate of citation gives a measure of its sweeping impact. Based on a recent search, in the single year since it was decided, Iqbal has been cited six times by the Supreme Court, over 300 times by the courts of appeals, and more than 6,500 times by district courts. The pleading requirement set out in Iqbal has been extended beyond the Bivens claims at issue in that case to a number of different causes of action, including Section 1981 and Title VII. Its vast influence commands close attention, as does the fact that it arose out 1445 of -- and dismissed -- a discrimination case brought by a member of an unpopular minority group.That fact is of particular note because an institutionalized regard for minority entitlements is an important systemic feature preventing democratic governance from devolving into the tyranny of the majority so dreaded by the Framers. Protections for minorities are embedded in the Constitution and in a variety of statutes, oversight of which is left largely to the least democratic of the three branches of government -- the federal judiciary. Relatively insulated from popular whim, the courts are minority groups' most natural allies in the United States' tripartite constitutional arrangement. Indeed, the Supreme Court acknowledged that “more searching judicial inquiry” is appropriate to counteract “prejudice against discrete and insular minorities.” Commentators, too, have stressed the centrality of that particular judicial function in our polity. John Hart Ely wrote about identifying “those groups in society to whose needs and wishes elected officials have no apparent interest in attending,” arguing that “it would not make sense” to assign the protection of such insular minorities “to anyone but the courts.” Ely took as the starting point of his analysis that “courts should protect those who can't protect themselves politically” by virtue of their minority status.This Article aims to highlight the limitations and pitfalls of the approach taken in Iqbal through critical examination of the Court's reasoning, on its own terms and in an empirical light, drawing on recent opinion polls about discrimination and statistics detailing the composition of the federal bench, as well as on emerging caselaw in the decision's wake. Iqbal's embrace of judges' subjective assessments under the guise of “plausibility” and “common sense” raises concerns that Muslim Americans' and other minority plaintiffs' claims of 1446 discrimination -- claims that members of these groups find plausible, indeed evident -- are far less likely to find agreement with a federal judiciary that does not shine by its diversity.By enhancing and privileging the dominant, majority perspective's role in a judicial assessment that determines minority rights, the Iqbal decision undermines a major facade of the constitutional design and, by extension, the rights of minority groups in this country. Indeed, the Court's coarse reliance on “plausibility” and “common sense” signals an embrace of unfettered judicial subjectivity, setting the stage for the Court's association of broad swathes of immigrants and citizens with terrorists, simply because “the September 11 attacks were perpetrated by 19 Arab Muslim hijackers.” Though the decision nowhere disclaims fealty to Federal Rule of Civil Procedure 8(a)(2)'s requirement of a short and plain statement nor does it reject the notion that such statements must be accepted as true, it strays from that standard by injecting indeterminate and, ultimately, subjective metrics into the threshold determination.Judicial discretion, of course, is not the enemy. Our legal system requires and regulates the exercise of subjective judicial discretion in a variety of procedural postures and for a range of reasons. The application of judicial subjectivity is indispensable in those settings; indeed, the influence of subjectivity is inescapable in other contexts as well, where it is not supposed to play as prominent a role. The concern at the core of this Article relates to the embrace of unfettered judicial subjectivity and its elevation to the rank of a factor of existential consequence. It is by placing the threshold viability of a legal claim at the mercy of unfettered judicial subjectivity that Iqbal seems to cut against the grain of basic fairness, including precepts that are taken and touted as fundamental -- that ours is “a government of laws and not of men,” for instance. While it was more of a decider in close calls, after some discovery and litigation, Iqbal seems to have transformed judicial gut instinct into a gate-keeping mechanism.Discrimination claims are particularly vulnerable to an unfavorable application of dispositive judicial discretion at the threshold stage. Under Iqbal, such claims require a showing of animus or deliberate, invidious intent, which is less likely at the stage where there are the fewest facts available, particularly in cases characterized by stark informational asymmetries between the parties. That the exercise of 1447 judicial subjectivity is, to an extent, racially-inflected raises concerns that minority plaintiffs' odds of success are even further reduced.Part I of the Article scrutinizes Iqbal's reasoning and its problematic embrace of a subjective plausibility standard at the threshold viability stage.Following that analysis, it seemed necessary to identify some of the common sense metrics that might determine what comes out of the black box of plausibility assessment. Part II of this Article begins by surveying recent polls and studies reflecting Muslim Americans' experiences of discrimination and the prevalence of anti-Muslim sentiment in the United States. That exercise reveals that whether one believes an invidious discrimination narrative offered by a member of a particular group depends in significant part on the personal background of the observer relative to that of the individual offering the discrimination narrative. In other words, plausibility is in the eye of the beholder and how one assesses plausibility is also colored by the discrimination claimant's origins. Part II then explores how judges are not wholly impervious to ambient biases held by the general public and how their own backgrounds, experiences, and views have a documented impact on judicial outcomes -- even ones less overtly pegged to subjective views than cases are under Iqbal. Finally, the inquiry turns to the relative lack of diversity on the federal bench and how, given all of the above, the wide latitude for judicial subjectivity under Iqbal bodes poorly for future discrimination claims brought by members of minority groups, generally, and Muslim plaintiffs, in particular.Finally, in Part III, an overview of its progeny thus far tests predictions about the gravity of the threat Iqbal poses to equal protection, and probes the analysis offered here of Iqbal's problematic embrace of judicial subjectivity. Cases in its wake so far confirm that Iqbal will carry particularly acute risk when it comes to unlawful discrimination claims brought by members of minority groups.