By Ramzi Kassem. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- Ph: 718-340-4558
- ramzi.kassem@mail.law.cuny.edu
Abstract:
Iqbal’s Entrenchment of Majority Group Skepticism Towards Discrimination Claims
Part of what prevents democratic governance from devolving into the tyranny of the majority so dreaded by the Framers is an institutionalized regard for minority entitlements. Those protections are embedded in the Constitution and in a variety of statutes, enforcement of which is left largely to the least immediately democratic of the three branches of government—the federal judiciary. Because the courts are relatively insulated from popular whim, the logic goes, they are minority groups’ most natural allies in our tripartite constitutional arrangement.
By enhancing the dominant, majority perspective’s function in a judicial assessment that is supposed to be protective of minority rights, the Iqbal decision undermines that façade 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” sets the stage for its assimilation of broad swathes of immigrants and citizens with terrorists, simply because “the September 11 attacks were perpetrated by 19 Arab Muslim hijackers.”
Critical examination of those concepts and the Court’s reasoning in an empirical light, drawing on recent opinion polls about discrimination and on statistics detailing the composition of the federal bench, will serve to highlight the limitations and pitfalls of the approach taken in Iqbal. A cursory overview of its progeny thus far reflects the gravity of the threat Iqbal poses to equal protection.