By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
In what can only be described as results oriented decision-making of the worst sort, a divided Supreme Court in Ashcroft v. Iqbal, went the extra mile to protect high-ranking federal officials from accountability for their unlawful conduct. The case involved a Bivens damage action by Javaid Iqbal, a former inmate of a super-max prison in New York, alleging that a number of federal officials, including Attorney General John Ashcroft and FBI Director Robert Mueller, violated his rights under the First and Fifth Amendments when they created a policy that assigned Iqbal to a harsh-treatment detention facility solely because he is an Arab Muslim.
In reversing the ruling of the Second Circuit, the Court's five most
conservative members ignored precedent and reversed longstanding policy in a head-long rush to protect Ashcroft and Mueller (right) from answering for their discriminatory actions. In the process the Court ended all supervisor liability for federal officials under Bivens even though various forms of such liability were conceded by the Government and recognized by all federal circuits that had addressed the issue.
The majority did not stop, however, with protecting supervisory federal officials from constitutional accountability. The opinion, written by Justice Kennedy, went further and also found that even if, as alleged by Iqbal, Ashcroft and Mueller were not acting as mere supervisors, but were personally involved in designing a intentionally discriminatory policy, such allegations were insufficient under Rule 8 to state a claim because they were too general to be afforded the assumption of truth when ruling on a motion to dismiss. Using its newly minted "plausibility" test for interpreting Rule 8's notice pleading standards, the majority, in effect, required Iqbal to do the impossible and include behind-the-scenes factual detail in his complaint to withstand a motion to dismiss. This one-two punch - no supervisor liability and a new Rule 8 plus pleading standard requiring factual detail known only to the government - will place most high-ranking federal officials beyond the reach of judicial remedies for constitutional violations.