In its decision in Bell Atlantic v. Twombly issues on May 21 last year, the Supreme Court eliminated the "no set of facts standards" in Conley v. Gibson's outline of requirements for satisfying Rule 8. Instead, a new plausibility standard has been announced - the 'facts' (as opposed to the legal conclusions) . Much of the commentary (indeed, ALL of the commentary that I have found) has focused upon the operation of this rule in the antitrust context - and justifiably so. After all, one can hope and dream for a highly restrictive application of the rule, to antitrust contexts, upon issues where the Court has already made firm pronouncements and the authorities are aligned. In this case, then, one could say that the respondent's suit alleging conspiracy did not survive a 12(b)(6) motion because the Court (and multiple authorities) had uniformly noted that as a matter of law, alleging parallel action (which admittedly, appears to be the extent of allegations in the brief) does not amount to conspiracy under the Sherman act. Even if the facts stated were true, no conspiracy could therefore be proved. This would be a comforting reading, if one did not (achronologically) have in mind the MA's district court's dismissal of gay service members' challenge to the Don't Ask Don't Tell policy a little over a year before the Twombly decision hit the streets.
Without specifically going into the various issues that arise in the Cook v. Rumsfeld decision, (the DADT case, now Cook v. Gates), two aspects of the Twombly decision trouble me. Clumsily stated, (as befits statements made at 2:06 am) they are:
1) 'Procedural' stare decisis. This is a term which I am going ahead and presumptiously coining (others may have a nicer, better term for it) where the Court uses its prior precedent to prevent an outcome not directly related to the substantive holding of that precedent. Here, for example, we see the Court presuming (without explaining - or reexplaining) the substantive analysis of its previous cases as being valid to come to a procedural decision. Thus, though the procedural decision relies on substantive law that the Court has previously articulated, the Court does not actually analyse this substantive law, resulting in an incomplete analysis of the procedural rule.
The neologism of course may be rather imprecise: as we see this sort of analysis appearing in post Boerne 14th Amendment Section 5 cases all the time. In these cases the Court uses the analyses of its previous cases to decide (for e.g.) whether the remedies (against States) that Congress affords to various groups through legislation comports with (or illegitimately exceeds) the level of constitutional protection that the Court has afforded to those groups under 14th Am, Sec 1. Even in these cases however, the Court is careful to re-explain elements of its analysis: thus in Garrett we see Rehnquist re-explaining elements of reasoning in Cleburne, to explain why the disabled did not qualify for the (apparently) heightened level of protection that Congress was affording them in the ADA, and in Hibbs we again (surprisingly) see him re-explain the reason for the Frontiero/Craig/VMA precedent raising women to a higher constitutional class. Considering the comparatively iconic nature of 14th Am jurisprudence and sex discrimination jurisprudence in particular, this explanation was perhaps unnecessary. Yet, it is made. It is troubling that such defences of the relevant precedent do not occur here, for cases in which they are arguably more required (if one ignores for a minute the different valence of stare decisis when made in statutory cases as opposed to constitutional cases). Instead, the precedent of the Court is used to allow, procedurally, dismissal of a case that may in fact be litigated to challenge the substantive issues of the very precedent used (Disclaimer: I know NOTHING about antitrust law as is probably obvious). There is one more reason, however, that Twombly becomes particularly upsetting.
2) It upsets the aspect of civil rights that hopes to attach new valences to legal terms through a recasting of factual issues. When a court looks at the facts that are presented to it at/through trial - whether the issue of segregated schools or the issue of gay couples, it often realises that the legal referents should mean MORE or something DIFFERENT than what they currently mean, that 'equality' perhaps, should be redefined, that 'relationships' have a different meaning, that 'intimate acts' within relationships cannot be considered under the same rubric that stare decisis would suggest (I am of course tending towards Lawrence in my thoughts). If however, the claims that must be stated must show a violation of a constitutional right in the same way that the constitutional right has always been imagined, then the dream of a 'living constitution' with evolving rights evaporates. We are left in the world of Plessy and Hardwick. One can only hope that a kinder form of notice pleading will evolve.