This Article questions whether the gain of curbing perceived frivolous litigation is worth the cost of undermining the core civic value of neutrality of justice. In Ashcroft v. Iqbal, the Supreme Court weighed in on the public debate about frivolous litigation. The lqbal opinion is essentially a memorandum by the Supreme Court written to the trial judges of America, encouraging these judges to aggressively, indeed very aggressively, identify and dismiss potentially frivolous civil complaints. That leeway-wrapped mandate comes at a cost. A cornerstone of our civic philosophy is that the judicial branch, as a general proposition, is a neutral and impartial arbiter of disputes, without regard to the identity or relative power of the litigants. It is this very concept that underlies the image of Lady Justice wearing a blindfold and holding a balanced scale. Experience tells us that Iqbal dismissals will not be content neutral. There is strong reason to believe that awareness of this lack of neutrality will percolate broadly into the public consciousness, and thus change the public belief in blind justice.
Kenneth S. Klein, Removing the Blindfold and Tipping the Scales: The Unintended Lesson of Ashcroft v. Iqbal is that Frivolous Lawsuits may be Important to Our Nation 41 RUTGERS L.J.593 (2010).