By Gary Gildin. 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:
- E-mail: gsg2@psu.edu
- Phone: (717) 240-5238
Abstract:
After Twombly, there was debate whether by adopting a more rigorous pleading standard for Sherman Act claims, the Supreme Court was usurping Congress’ role/intent in promulgating and approving amendments to the Federal Rules of Civil Procedure. Iqbal extended the new Twombly pleading rule to determinations of qualified immunity in complaints seeking damages for violation of constitutional rights. An examination of the Supreme Court’s past activism in crafting the qualified immunity in Section 1983 cases lends support to the argument that the Court in Iqbal was acting to achieve its own policy goals, not to enforce Congress’ intent as to the construction of the Federal Rules of Civil Procedure.
The Supreme Court’s role in interpreting legislation is to carry forth the intent of Congress. In Pierson v. Ray, the Court held that the Congress that enacted Section 1983 intended to incorporate the common law immunity that existed in 1871. In subsequent immunity cases, the Court a) extended qualified immunity to all government officials without asking whether they had immunity as of 1871, and b) continued to expand the immunity standard without linking those changes to evolution in the common law immunity.
The Supreme Court’s general practice is to decide only issues raised below, properly presented to the Court in the petition for certiorari and briefs, and necessary for resolution of the case. The Court’s adjustments to the qualified immunity standard arose in cases where a) neither party sought the modification from the lower courts, b) neither party asked the Court for the adopted alteration of the immunity test, and c) changing the test for immunity was not needed to resolve the case.
Senator Specter proposed a bill that would restore the pre-Twombly pleading standard under the Federal Rules of Civil Procedure. This article suggests the bill be expanded to respond to the Court’s Section 1983 activism and to achieve a more sensible and considered allocation of the risk of constitutional loss. Given that such proposed legislation likely would be dead on arrival in the current economic climate, a second option is for victims of government misconduct to bring damage claims under state constitutions. Just as state courts are free to give broader construction of rights under state constitutions, they are empowered to afford lesser immunity to government officials.