View as PDF

Arguing
Ashcroft v. Iqbal
A View from the Lectern

BY PROF. ALEX REINERT

 

THE BUILDING HOUSING THE SUPREME COURT of the United States sits across from the United States Capitol, smaller than its legislative sibling but on a slight uphill grade from the elected branch. Or at least that’s how it seems when one is standing at the top of the courthouse steps, looking out past the Capitol. On December 10, 2008, I walked down those steps having argued my first case in the Court, something I considered not so much an accomplishment as a feat of endurance. After four years of litigation, a total of well over 300 pages of briefing at the trial, appellate, and Supreme Court levels, and months of preparation for oral argument, the case of Ashcroft v. Iqbal had been fully briefed, argued, and submitted to the Court. My co-counsel and I would spend the next months awaiting the Court’s decision, the matter entirely out of our hands.

Litigation has been described by many in the business as a "roller coaster," and I think they mean that it has a number of ups and downs, with momentum shifting from one party to another and back again multiple times. It is exhausting, exhilarating, and terrifying, and once you are done you (usually) can’t wait to start again. But a roller coaster always returns to the same place, and in that sense the analogy fails; litigation is transformative for all those-lawyers, clients, even judges-who are involved in it. I have come to see litigation as more like a long walk in the woods, or a family tree drawn over many generations. There are numerous beginnings and endings. There are detours, pitfalls, moments to sit and reflect, and opportunities to rest and gather resources for the road ahead.

THE CASE

When I think about how the journey of Ashcroft v. Iqbal began, I see several different beginnings. There are, of course, the basic facts that drive the case: Javaid Iqbal, an immigrant from Pakistan, was arrested by federal authorities after September 11, held in Brooklyn’s federal Metropolitan Detention Center (MDC), and confined formanymonths in the Administrative Maximum Security Housing Unit (ADMAX SHU) of the MDC. The case stems from the treatment he received and the reasons he was held there in the first place. As alleged in his complaint, while he was confined in the ADMAX SHU Mr. Iqbal was beaten, strip-searched, shackled, and subjected to other deprivations as a result of being classified as of interest to the September 11 investigation solely because of his race, religion, and national origin. Although much remains in dispute about the case, and most of the evidence related to it has been designated confidential and therefore not subject to public release, Mr. Iqbal was never charged with any crime relating to terrorism or September 11, and he was eventually returned to his home country, Pakistan, where he now lives.

But Mr. Iqbal’s case also began, in the formal legal sense, when he filed his complaint in the Eastern District of New York, seeking compensation under an old line of cases that allow individuals to sue federal officials for damages for violations of the Constitution. He had retained counsel at Koob and Magoolaghan, a law firm where I worked, and with the Urban Justice Center, a nonprofit community organization in New York City. In that initial complaint, Mr. Iqbal identified defendants ranging from the individual officers who had subjected him to abuse to the high-level officials he alleged had created a policy of treating Arab and South Asian Muslims as presumed terrorists. Rather than file an answer to Mr. Iqbal’s complaint, several of these high-level defendants moved to dismiss it, arguing that they were entitled to qualified immunity for the conduct alleged in the complaint. The motion practice sparked by the defendants’ decision marked yet another new beginning.

These defendants’ motions were heard by Eastern District of New York Judge John Gleeson, who rejected them for the most part in a 70-page memorandum and order dated September 27, 2005. The defendants then appealed to the Second Circuit, which affirmed Judge Gleeson’s decision on June 14, 2007. By this time, Mr. Iqbal’s original attorneys had been joined by lawyers with Weil, Gotshal, and Manges, LLP; more than 40 attorneys, most of them representing various defendants, were appearing at ongoing depositions twice a week.

Each strategic step-the motion to dismiss, the interlocutory appeal, the beginning of discovery, the sequencing of depositions-marked a different path that the litigation meandered on, as suggested by the various formal names the case has taken.When first filed, the case was Elmaghraby v. Ashcroft. Ehab Elmaghraby was an Egyptian man who had experienced treatment similar to that received by Mr. Iqbal, and was at first his co-plaintiff. By the time the Second Circuit decided the case, Mr. Elmaghraby had settled his lawsuit with the government, and the case was renamed Iqbal v. Hasty. Dennis Hasty, the former warden of the MDC, was the first to file his notice of appeal with the Second Circuit, so by convention he became the lead defendant in the case.

CERTIORARI GRANTEDWhen the Supreme Court granted the petition for certiorari filed by former Attorney General John Ashcroft and current FBI Director Robert Mueller, the case was known as Ashcroft v. Iqbal. The most recent beginning, then, began with a change in nomenclature.

When the Court granted certiorari, I received a number of congratulatory messages from friends, family, and former colleagues. It was slightly disconcerting. I had clerked on the Court for Justice Stephen G. Breyer, and so I knew that my co-counsel and I had failed to do our first job: to keep the Court from granting certiorari. I also had convinced myself that our arguments in opposition to certiorari were so compelling that there was little chance it would be granted. But as the day approached on which the justices held their private conference for cases pending review, I began to look at the rate of success when the Solicitor General is arguing for certiorari: estimates ranged from 50 to 80 percent, depending on the year. For everyday litigants, the rate is somewhere close to one percent. So I was not surprised when we learned that at least four justices, the minimum required to grant certiorari, believed that the case presented questions substantial enough to warrant a hearing.

The briefing on the merits initiated the next stage of the litigation. The briefs submitted on behalf of General Ashcroft and Mr. Mueller were joined by those submitted by other defendants, who had sought certiorari but on whose petitions the Court had not acted. Our brief sought to cover the principal arguments raised by Ashcroft and Mueller, and also had to take into account the arguments raised by the parties who were not formally before the Court. By the end of October, we had completed our briefing and I turned my full attention to preparing for oral argument.

PREPARING FOR ORAL ARGUMENT When I clerked for Justice Breyer, I saw most of the oral arguments that took place during the October term in 2000. I had seen a range of oralists, from the truly amazing to the awful, although almost everyone was very good. The Solicitor General, Greg Garre, who was arguing the case for the petitioners, had argued more than 25 cases before the Supreme Court. I, on the other hand, had argued a big fat zero. I knew that to be fully prepared, I should arrange to be raked over the coals in advance as many times as possible by as many different smart people as possible.

So I began to prepare. I outlined what I thought were the principal points the petitioners would strive to make. I made a list of the key points that I wanted to make sure the justices heard from me. I thought about the most difficult questions I might be asked. I made sure that I knew the record backward and forward, in case a question touched upon any part of it. Most important, I practiced answering questions from my co-counsel, my colleagues at Cardozo, and a wide variety of attorneys and professors. These moot argument sessions, including one in front of a packed house in Cardozo’s moot court room, took place over the six weeks leading up to the day of argument.

On December 8, the Monday before my argument, I went to see my friend Chris Meade argue a case in the Court. I was struck, as I had been when I clerked, by the beauty of the courtroom and the civility displayed by the justices. As soon as Chris’s argument was over and I began thinking about my argument, scheduled for just two days later, it was difficult to relax. I had brought to Washington two suits for the argument, and I debated with friends and family which one was the best to wear. I had three ties, and I laid them repeatedly over the suit I had chosen to see which seemed most appropriate. I read and reread the briefs on all sides, the amicus briefs, and my notes for the argument. I made handwritten notations on the papers I would bring with me to the podium.

THE SUPREME COURTOn Wednesday, I woke up at about 4 a.m., impressed that I had managed to sleep even that long. I did my best not to wake my wife, who had arrived the night before with other members of my family, and I sat with the briefs one last time, thinking over the case.

The Solicitor General, Greg Garre, who was arguing the case for the petitioners,
had argued more than 25 cases before the Supreme Court.

I, on the other hand, had argued a big fat zero.

The memory of that morning is mostly a blur. We arrived early at the courthouse and filed in to wait for the courtroom upstairs to open. On the ground floor, there is a statue of the first Chief Justice, John Marshall, seated in a chair. The

sheen on the statue’s right foot speaks to the tradition of touching it for good luck before proceeding to Court. I had indulged in the tradition as an aspiring law clerk prior to my interview with Justice Breyer, and I saw no reason to tempt fate this time.

When the courtroom opened, my co-counsel and I filed upstairs to be addressed by the clerk, who explained how the Court would proceed that morning. It may have been a good-faith attempt to make everyone comfortable and to calm our nerves, but it proved of little use to me. By that point I was ready to be in the courtroom, and as soon as we were able, we rushed in, took our seats, and surveyed the scene.

I realized for the first time how intimate a setting the Court is.
The Chief Justice’s chair seemed to be only a few arms’ lengths away, and Justice Breyer
and Alito’s seats, to my extreme left and right respectively, were not much farther.

After sitting down at the counsel table, putting the complimentary quill pens into my briefcase for safekeeping, and checking to see that all of my family was seated, I turned to look at the dais on which the justices sat. The lectern at which I would speak, after the Solicitor General addressed the Court, was to my immediate right. It can be adjusted up and down to suit the height of the attorney, but we already had been told the apocryphal story of the lawyer who had managed to break the crank a few weeks before. I stood up and stepped behind the lectern to ensure that I did not need to adjust its height, and as I looked at the justices’ empty chairs, I realized for the first time how intimate a setting the Court is. The Chief Justice’s chair seemed to be only a few arms’ lengths away, and Justices Breyer and Alito’s seats, to my extreme left and right respectively, were not much farther. The justices sit in a shallow semicircle, and I was struck by how close everyone seemed.

The half hour between sitting down and the start of the argument was measured in seconds for me. The courtroom was filling up; the clerks for the current year were seated to the far right, in chairs that faced the audience. The press and sketch artists were in the left wings of the courtroom, taking notes. About five minutes before the justices filled their seats, there seemed to be dead silence. The sense of anticipation, fear, and excitement that occupied those five minutes- well, I am no roller-coaster rider, but I imagine it is the sense one gets when ascending that first incline.

And then the gavel sounded, the justices entered, smiling and chatting, everyone stood as "Oyez, Oyez, Oyez" reverberated through the room, and the argument began. I cannot imagine having to argue the second case to be heard on any given argument day. We were the first case for that day, and it was hard enough to wait for Solicitor General Garre to finish his opening argument. I listened closely, took notes, and made adjustments to the material I would bring to the lectern. And then it was my turn. After the opening words, "Mr. Chief Justice, and may it please the Court," not much lingers in my head. I don’t remember looking down at my notes more than once. I remember colloquies with the Chief Justice, Justices Alito, Breyer, Scalia, and Souter, and bits here and there with Justices Stevens and Ginsburg. When I looked back over the transcript (which I waited two months before doing), I saw many more "I mean"s and "Well"s than I would have liked. But I sat down without great incident, and exhaled.

Every argument has bright spots and forgettable lines. I have never argued a case at any level without spending time wishing I had said something differently. And this argument was the same. For three days, I woke up with thoughts of what I could have/should have/would have done better, interrupted only occasionally by positive memories of what had seemed to go well. I tell my students that it is hard to win or lose a case on oral argument, but that does not make it seem any less consequential.

THE DECISION: FIVE TO FOURWhen the Court’s five-to-four decision reversing the Second Circuit’s judgment finally came down on May 18, 2009, the second-guessing started all over again. Justice Kennedy authored the majority opinion that reversed Mr. Iqbal’s previous victory, and Justice Souter wrote the principal dissent. I won’t go into the fine details of the majority’s decision, but in many ways it reflects the multiple beginnings and endings that mark all litigation. The ruling says that before Mr. Iqbal can sue General Ashcroft and Mr. Mueller, he must make more-specific allegations regarding their involvement in his confinement in the MDC’s ADMAX SHU. Justice Kennedy wrote in the majority opinion that Mr. Iqbal’s "account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct" by other officials who remain in the case.

Justice Benjamin N. Cardozo, in The Growth of the Law, described the job of the Supreme Court as follows: "We must distinguish between the sound certainty and the sham, between what is gold and what is tinsel; and then, when certainty is attained, we must remember that it is not the only good, that we can buy it at too high a price." The Court’s decision in Ashcroft v. Iqbal provides a particular kind of certainty, but like many decisions, it does not end Mr. Iqbal’s case; it presents a challenge different from the one that came before, but it leaves us back in the hands of the lower courts, to continue the long, meandering path toward resolution. The only certainty is that there will be some resolution, and that the ride will continue to be exhausting, exhilarating, terrifying, and, ultimately, worth it.