I am just not a great fan of Chief Justice John Roberts at all—there are certainly more than a few comparisons to be made between Roberts’ and Warren’s elitism… the certainty that the Judges of the Land know more and can make wiser choices than “ordinary people.”
Chief Justice Roberts has in seven years done more to close the doors to the Federal Courts than all the Chief Justices of the Supreme Court had ever done to open those doors before. The Federal Courts are effectively “off limits” now as arenae for the genuinely, freely adversarial or dialectic investigation and discovery of truth. And where the Federal Courts go, the State Courts follow like sheep close after….
It may sound like something “only a lawyer” would care about but Warren and Roberts careers have focused on making the entire civil practice in Federal Court turn on ONE RULE, namely, Rule 12(b)(6) “the Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted.” This one single rule is now “the gatekeeper” to the Federal Courthouse doors, and the “keymaster” is the idiosyncratic (or possibly corrupt) Federal Judge who is rewarded by the “judicial statistics” system for keeping his docket numbers “low” (i.e. Federal Judges are rewarded for their ability to minimize the number of cases and motions pending at any one time—12(b)(6) works WONDERS for cleaning the docket for 99% of the cases that come before Federal District Courts.
Again, while it may seem like a rather obscure point of law to call it a national crisis, the Motion to Dismiss has basically become “the whole game” for all but the wealthiest and most powerful litigants in Federal Court—and the reasons for dismissal are now intentionally unclear—with vast subjective discretion given into the hands of unelected (and logically, morally, and politically quite unelectable—because they are so far removed from “the ordinary citizen”) elite law-review type and model judges.
Earl Warren and John Roberts, in their construction and application of Rule 12(b)(6), align on the progressive empowerment of the subjective, almost unreviewable, control given to Judges over which complaints will be allowed or not. Under Earl Warren, the Supreme Court gave the Judges the power to decide whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” From the standpoint of the Seventh Amendment, of course, this holding itself was an OUTRAGE. Under the Common Law and the Constitution, ONLY juries should have any right to decide what facts are “proven” or not and whether a party is entitled to relief. Still, in characteristic fashion, the Warren Court was applauded for setting such a high standard for dismissal of claims. But the precedent was set: JUDGES not Juries, make the decision about whether a complaint alleges “sufficient” facts to warrant the trial which the Seventh Amendment guarantees. That language “beyond reasonable doubt” was first enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, decided on November 18 in 1957. 11-18-1957 Conley v Gibson – 355 US 41 78 SCt 99 (1957).
Exactly Fifty years later, John Roberts, in the first major decision concerning the rules of civil procedure under his “Chiefship” found that an anti-trust complaint drafted by one of the top Plaintiffs’ Anti-Trust firms in New York City alleged insufficient facts to be “plausible.” That was “Bell Atlantic v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929 (May 21, 2007) 05-21-2007 – Bell Atlantic Corp v Twombly – 550 US 544 (2007).
I think that the original sin was to allow JUDGES to prejudicially decide Motions to Dismiss for Failure to State a Claim.
For this reason, Conley v Gibson, in its time, functioned in a manner just as subversive to the Constitution as Bell Atlantic v. Twombly. In 1957, the Supreme Court approved a subjective test, albeit a very LIBERAL test (difficult to flunk, like High School these days is for most student), to be applied ONLY by Judges before any fact-finding trial or even discovery—to act as gatekeepers allowing only “favored” cases to go forward.The Seventh Amendment to the Constitution guarantees the final right to try ALL facts to a jury, which findings are hardly subject to judicial review. Twombly, by contrast, is rather like Harvard College used to be before 1940—anyone can enroll and file papers but its almost impossible to pass through the first year. Twombly gives Federal judges unfettered discretion to dismiss cases based on their subjective evaluation of “plausibility” but Article III judges were never intended (by the Constitution) to have the power to exclude ANY cases from consideration.
Rule 12(b)(6) of the Federal Rules of Civil Procedure Permits Federal Judges to PREJUDICIALLY evaluate the factual allegations of complaints and prevent cases from ever being HEARD by juries as is GUARANTEED under the Seventh Amendment.
After Twombly, Judges now are empowered to decide whether the facts are (1) sufficiently alleged, (2) whether they make a “plausible” story. This means that when you allege conspiracy, for example, the Judge basically can deny you the right to investigate the facts so that you will NEVER be able to put your complaint to trial before a jury.
So, if a group of homeowners, for example, were to allege that the State Courts, and County Sheriffs’ Departments and local Constabulary of any given state systematically discriminated against mortgagors in favor of mortgagees, no matter WHAT FACTS WERE PRESENTED you can be sure that the U.S. District Court would find “insufficient” factual allegations “incomprehensibly” woven together as an “outlandish and implausible conspiracy theory.”
This has become the (de facto) mantra of the the U.S. District Courts today: no claim or complaint that defies the ruling government’s purposes, or the ruling BANKS’ purposes, will ever be allowed to go forward in court.