The U.S. Supreme Court recently resolved important issues pertaining to constitutional litigation under §1983 and the Bivens1 doctrine. In Ashcroft v. Iqbal,2 the Supreme Court held, 5-4, that: 1) the new “plausibility” pleading standard adopted in Bell Atlantic Corp. v. Twombly3 applies to federal court civil complaints filed under §1983 and Bivens; and 2) supervisors may be held liable only for their own constitutional violations.
Make no mistake about it. These are no mere technical issues. They play a vital role in federal court constitutional litigation. It is no coincidence that the justices in Iqbal divided along their normal ideological lines. Justice Anthony M. Kennedy, the “swing” vote, wrote the opinion for the Court, joined by Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito. Justice David H. Souter, who authored the opinion in Twombly, wrote the major dissent, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.4
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