Legal Commentary

One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.

On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.

Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.