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ACLU presents:
Screen shows: U.S. Supreme Court preview briefing 2008-2009 term
(video 3 of 4)
Good morning, everyone! I want to welcome you to ACLU's annual Supreme Court breakfast.
Steve Shapiro, our legal director, will give you a little bit of an assessment as to where
the court has come so far and what we might expect of this coming term. And, now, I will
hand the program over to Steve.
Screen shows: Video 3: Troubling cases ahead on the docket
Steven R. Shapiro ACLU Legal Director: What we are beginning
to see is a court that using the mantra of judicial restraint, which it invokes selectively,
I think, is increasingly closing the door to Civil Rights claims and Civil Rights plaintiffs
in ways that are quite troubling. There are a host of cases that, I fear, may fly beneath
the radar, both of the press and certainly of the public in general, that never-the-less,
could certainly turn out to have enormous significance about how Civil Liberties Rights
and Civil Liberties cases are litigated, especially in the Federal Courts, and to who has access
to the Federal Courts and what kinds of claims proceed. The court, also, has a very heavy
docket this year in criminal cases. I think that there is a real risk that we will see
a serious erosion in the 4th, 5th, and 6th amendment rights before the year is out.
Screen shows: Case to Watch: Ashcroft v. Iqbal
SS: One of the cases is a case called Ashcroft v. Iqbal. The issue before the Supreme Court
is a pleading issue. The question is: when you sue a high level government official for
damages claiming a violation of your constitutional rights, what do you have to say in the initial
complaint in order to precede against that high official? The rule in the United States,
for seventy years, had been that all you needed to do was to assert sufficient--make a claim,
that if you were able to prove a trial, establish that your constitutional rights have been
violated. We had a system of notice pleading. As long as the defendants were on notice about
the claims against them, it was sufficient to move forward and cases would not be dismissed
at the outset. The government in the Iqbal case is now coming and very aggressively arguing
that when high level government officials are sued, it is necessary to include many
more facts and supporting evidence in the initial document( the complaint itself) even
before any discovery has taken place in the case. In order to establish, they would say
that the charges that are being leveled against this high level government official are quote,
unquote plausible. What I fear is that the government is trying to get the Supreme Court
to impose such a stringent level of specificity of pleading requirement in Civil Liberties
cases that it will be extraordinarily difficult to go forward in many cases against anybody
other than the immediate officers who were involved in the specific event. And, one of
the things that we have seen in this post 911 world is how difficult it has been to
establish countability of the political chain. One way you do that is through litigation
and through due process of discovery; and, if that is cut-off at the outset, I think
it will be a serious blow.
Screen shows: This is video 3 of 4 in the ACLU series:
Supreme court briefing 2008-2009 term
Video Menu: 1. Understanding the Justices
2. ACLU Cases in the Pipeline 3. Troubling Cases Ahead
4. First Amendment Cases
Watch all videos at: Aclu. Org. or you tube/acluvideos