Ginsburg asks about the findings of a report that came out of the Inspector General's Office in 2003 faulting government officials for a system that was at times chaotic and abusive. Garre replies again that whatever allegedly discriminatory actions were taken occurred "on an ad hoc basis."
Alexander Reinert represents Iqbal, and he rejects the idea that this is all about "ad hoc decisions at low levels." Justice Samuel Alito immediately starts to grill him about what specific allegations he has that Ashcroft or Mueller "approved of an illegal policy." Justice Antonin Scalia says there are "two possibilities here," one being that there was a perfectly "valid policy that was subject to distortions at the lower levels," the other being that "high-level officials themselves directed unconstitutional acts." In his view, the second is b-a-n-a-n-a-s. Reinert replies that both would be illegal.
Chief Justice John Roberts asks Reinert whether the president of Coca-Cola would be subject to the same pleading standards as the attorney general or the FBI director for decisions made "on the evening of Sept. 11." Reinert responds "certainly," and Roberts, aghast, therefore asks him the same question three more times, concluding: "You at least accept that because we're looking at litigation involving the attorney general and the director of FBI in connection with their national security responsibilities, that there ought to be greater rigor applied to our examination of the complaint." Reinert says no such special scrutiny is required under the federal rules. The rules are the rules no matter how busy or important the defendant might be or how terrible the national-security crisis.
Stevens will then ask a question about the insertion of rats into Coke bottles, leading Souter to redouble his efforts to introduce the word mouses into mainstream legal discourse. Scalia then points out that the ability of the attorney general and FBI director to do their jobs should not be dependent on the discretion of a district court judge. He pronounces district court judge the way you or I might say serial wife-beater. Not to be outdone, Alito will later wonder, in horror, "How many district judges are there in the country? Over 600? One of those district judges has a very aggressive idea about what discovery should be. What's the protection there?"
That's right. This case is about the Supreme Court justices protecting Americans from out-of-control district court judges and their out-of-control discovery rules. And that is the case even when, as here, both the lower court and the appeals court crafted sensible, nuanced limits on discovery, protecting Ashcroft and Mueller from precisely the sort of burden the court is worried about. America has survived liberal pleading rules for a very long time, in part because judges are pretty good at identifying and discarding the lame cases. But the justices seem determined to shut down just a few more trials by spontaneously manufacturing a rigorous pleading standard for high government officials who are busy with national security emergencies.
And humility that ain't.
By the end of the morning, even Breyer and Stevens start to go wobbly at the prospect of busy important men caught up in civil litigation for a decade. Hey, let's reserve trials for just the mediocre and the lazy! The stunning thing here is that, without any apparent basis in case law, statute, or the Constitution, there are at least three votes to create different pleading standards for the high and low ranking, the busy and unbusy. It's the kind of magical legal thinking that got us into the war on terrorism and the kind of magical thinking that will never let us out.