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You don't have to go back far to find the most impactful U.S. Supreme Court decision on civil rights of our generation.

A ruling that made it more difficult to sue high-ranking government officials will soon be "the most frequently cited Supreme Court case by the lower federal courts in all of American history," Erwin Chemerinsky told a packed Castles Center in the basement of the University of Montana Law School Monday.

"And it was decided just last spring."

Chemerinsky, one of the nation's most prominent constitutional scholars, is the founding dean of a new law school at the University of California-Irvine. He was in Missoula to deliver the 2010 Honorable James R. Browning Distinguished Lecture in Law, sponsored by the UM Law Review.

In the case of Ashcroft v. Iqbal, Javaid Iqbal claimed that FBI director Robert Mueller, former U.S. Attorney General John Ashcroft and others should be held liable for discrimination when Iqbal was arrested as a person "of high interest" after the Sept. 11, 2001, attacks. It was dismissed by the U.S. Supreme Court on a 5-4 vote in May 2009.

Chemerinsky said the court's decision was based on findings that Iqbal's allegations were not credible.

"It's long been established that credibility of a witness ... should be an issue for a jury," he said.

Since the ruling, it's up to a federal district judge to decide who is and who isn't credible. The last time he checked, in January, there were already 6,000 federal court cases in which Ashcroft v. Iqbal was cited.

"What it means is it all depends on the luck of the draw on who your district judge is," Chemerinsky maintained. "This is nothing else but five conservative judges on the court making it harder for those with claims to access the federal judiciary."

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The 56-year-old Chemerinsky called his lecture "Closing the Courthouse Doors," a title similar to that of a scholarly paper he wrote while at Duke University in 2002. He cited a series of decisions under the Rehnquist and, now, the Roberts Supreme Courts that limit access to the federal court system.

Heightened pleading requirements, what Chemerinsky called the "tremendous expansion of sovereign immunity" to include state governments, and the shifting of cases from litigation to arbitration all make it more difficult.

"What all of these examples share in common is they'll never make headlines in the New York Times and other newspapers," he said. "No one pays attention. They're technical. It's too legalistic.

"To me what makes this so insidious is that rights are being taken away by denying a forum without people even being aware of it."

From junior high on, we're taught that we each have a right to our day in court.

"My point this afternoon," Chemerinsky said, "is that all too often that is becoming a myth."

He called on Congress to "see the real human consequences" of these Supreme Court actions.

"All of these procedural decisions have a human cost, but it's hard to get people to relate to them because they seem so dry, so abstract, so removed from human experience," he said.

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Chemerinsky's resume includes more than 20 years teaching law at the University of Southern California, DePaul University and Duke. His appointment as dean of the UC-Irvine School of Law, which started classes last fall, caused what the Los Angeles Times billed a "showdown of academic freedom" when the chancellor of the university rescinded his hire in 2007.

Michael Drake said he felt Chemerinsky's liberal commentaries were "polarizing" and he "would not serve the interests of California's first new public law school in 40 years."

A fellow law school dean said finding out after the contract was signed that Chemerinsky was a liberal was "rather like discovering that Wilt Chamberlain was tall."

Chemerinsky said the university had underestimated the "conservatives out to get me."

Drake ultimately traveled to North Carolina to meet with Chemerinsky, and the two issued a joint news release that Chemerinsky would indeed be head of the program.

The annual lecture at UM is a tribute to Browning, a Montana native and former UM law student. Browning, 91, has served for more than 48 years on the 9th U.S. Circuit Court of Appeals.

Reporter Kim Briggeman can be reached at 523-5266 or at kbriggeman@missoulian.com

 

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