Shifting Standards for What Constitutes a Dispute

David Super

      As we enter a day of suspense, likely followed by many more of disputes should former President Trump lose, I am struck by the divergence in our nation’s standards for what constitutes an adjudicable dispute.  Our judiciary, long led and now dominated by conservatives, has been steadily narrowing what claims may receive full consideration.  By contrast, the former President and his supporters, also wanting to be seen as conservatives, adamantly insist on greatly broadening the definition of a legitimate dispute.

     In Ashcroft v. Iqbal, a 5-4 conservative majority of the Supreme Court held that Javaid Iqbal’s complaint that the federal government violated his constitutional rights in the wake of the 9/11 terror attacks must be dismissed without further proceedings.  The Court held that Iqbal’s failure to allege specific facts that would pierce government officials’ asserted qualified immunity precluded him from getting a hearing in court or even using the discovery process to ascertain whether the officials involved had knowingly violated his rights.  As many people whose rights are violated have no way of gathering that information without taking officials’ depositions, this effectively precludes consideration of many important cases, some of which likely are meritorious. 

     Two years earlier, Bell Atlantic Corp. v. Twombly required (by a somewhat broader majority) dismissal of an antitrust complaint because the plaintiffs failed to specific facts showing active collusion between the defendants.  Here again, although victims of antitrust violations typically have no viable means of learning about secretive communications between corporations whose practices matched one another, dismissing this claim before allowing discovery effectively precludes consideration of a great many cases, some of which are likely meritorious.

     At the same time, the Supreme Court, with less ideological polarization, has sought to rein in what sort of expert opinions may be presented to juries.  A series of cases, beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc., and Kumho Tire Co. v. Carmichael, direct trial judges to disallow testimony by for proffered expert witnesses whose proposed testimony lacks sufficient scientific or technological support.  The Daubert standard replaced a previous standard allowing expert testimony reflecting a consensus of experts in the field without judicial inquiry into the justification of that consensus.  Arguing that “many people believe this” is no longer sufficient to support expert testimony – or, by extension, claims that rely on that testimony. 

     The Court also has denied new trials to numerous criminal defendants whose constitutional rights were concededly violated when it assesses that the defendant likely would have lost even in a fair trial.  The judge’s determination that defendants’ cases lack merit thus precludes them from presenting those cases to a jury in a trial meeting constitutional standards. 

     The Court justifies these doctrines by referring to the costs that disputes impose on the adjudicative system and the parties as well as by worrying that lay jurors could become confused and embrace meritless claims. 

     These same principles surely have weight in the political sphere as well.  Numerous public opinion surveys and diner interviews demonstrate that a substantial segment of the electorate – indeed, the segment that decides many elections determining who governs – is willing to devote very little time to following politics.  Increasing the number of disputes they must adjudicate likely crowds out their attention to those that must be put to them.  In addition, because they come to political decisions with relatively sparse contextual frameworks, they are quite vulnerable to being misled.  Indeed, the jurors whom Iqbal, Twombly, Daubert, Kumho, and the Harmless Error Doctrine seek to protect are precisely the same people – in many cases, drawn from the same voter rolls – as the voters that decide elections.  Efforts to evade jury service and low voter turnout are symptoms of the same erosion in civic culture.

     Yet the former President and his supporters insist upon an entirely different standard for what constitutes an actionable dispute.  Most House Republicans voted in favor of challenges to lawfully chosen electors in 2020 with no evidence of improprieties.  Many have defended this action by saying that questions had been raised about those states’ elections – a standard that would have proved more than adequate for Iqbal and Twombly to have had their days in court.  The notion that many people believe something – surely as a result of relentless allegations by the former President unsupported by evidence – would be wholly insufficient to bring expert testimony to a jury under the Daubert standard without scientific or technical support for those beliefs.  And the statement by the former President’s own Attorney General that no voter fraud occurred on a level remotely sufficient to change the results of the election would prevent any disruption of the electoral process under the Harmless Error Doctrine. 

     Complaints about real-time fact-checking during the presidential debate are similarly odd.  If a trial witness incorrectly reads a document from the stand, the judge is surely permitted to inform the jury.  When a candidate makes an assertion of fact that has been thoroughly investigated and debunked, why should not a moderator so inform the voters that are watching?  Lies burden the process and risk confusing the unsophisticated.  Factual claims with some evidentiary support should indeed be adjudicated by the ultimate trier of fact, but “because I saw so” does not count as evidentiary support in other settings.  And a fact-checking moderator, unlike a judge granting a motion to dismiss or excluding proffered expert testimony, is merely assisting the triers of fact rather than taking the decision entirely away from them. 

     Our litigation system also relies heavily – some would say too heavily – on reputations for credibility.  The Supreme Court has promulgated and broadly interpreted a rule allowing past criminal convictions to be introduced as evidence to impeach the credibility of criminal defendants testifying in their own defense.  This causes a great many defendants, including those with compelling stories of innocence, to refrain from testifying.  Yet the former President and his supporters insist that, despite his well-documented history of extravagant, deliberate, falsehoods, his mere assertions should be honored without evidence.  A criminal defendant on trial for animal cruelty could not take the stand to accuse unnamed immigrants of the crime without having their past convictions brought before the jury for impeachment.  Surely at this stage journalists can legitimately demand proof for outlandish factual assertions?

     Trial by a jury of our peers is a fundamental, defining feature of our country.  Yet few would argue that every unsubstantiated claim deserves its day in court (even if some of us believe the Court has gone too far in taking choices away from juries).  Popular election of important office-holders is another defining feature of our country.  That, too, does not require anyone to take seriously “disputes” pressed on the basis of conjecture or outright lies. 

     @DavidASuper1