In the space below, we analyze the essential issues raised in Spokeo v. Robins, a case argued in the Supreme Court this week that presents the question of plaintiffs’ access to the federal judiciary.
To appreciate what confronts the Court in Spokeo, it helps (as is often true) to start with the Constitution’s text itself. Article III provides that federal courts may hear “cases” and “controversies,” including “all cases, in law and equity, arising under . . . the laws of the United States . . . .” On its face, this language authorizing federal court review might appear quite broad. Yet, over the years, the Supreme Court has read it to significantly limit federal court jurisdiction. Among other things, the Court has held that a “case” or “controversy” requires a plaintiff who has suffered an “injury in fact,” which the Court in turn has defined as a “concrete and particularized, actual or imminent invasion of a legally protected interest.” A plaintiff’s injury in fact is necessary (though not sufficient) for the plaintiff to have federal standing—that is, for the plaintiff to be an appropriate person to invoke the jurisdiction of a federal court. Unfortunately, the terms “injury in fact” and “concrete” are opaque; in key respects they beg the question they are supposed to help answer. (“Particularized” is a more helpful term—it essentially means an injury that is particular to the plaintiff or a limited class of people, as opposed to one shared by all persons or by all taxpayers. Most every jurist and commentator seems to agree that injuries that are not particularized do not suffice—perhaps for reasons of judicial administrability—to get a plaintiff into federal court).
With respect to concreteness, injuries that always have been recognized by courts pose relatively few problems. But what about invasions of nontraditional rights that are created by Congress in newfangled statutes? In very simplified terms, the spectrum of views on federal standing on this question runs as follows: On the left are those who believe that the invasion of any “legally protected interest” created by Congress constitutes injury in fact. Those who hold this view see the word “concrete” in the Court’s definition of “injury in fact” as not adding much. In the middle of the spectrum are those who see “concrete” as a meaningful component in the definition, but take a broad view of the kinds of injuries that qualify as concrete. On the right of the spectrum are those who see “concrete” as an important additional limitation on federal standing, and who believe the term significantly constrains Congress’s power to create federally justiciable legal injuries. Current and former justices of the Supreme Court hold and held views on the left, right, and center of this spectrum, and various of the Court’s prior standing decisions provide inconsistent support for all of these views.
The Spokeo case the Court heard argued on Monday may have a significant effect on federal standing doctrine with respect to the meaning of “concrete.” Spokeo is a company that aggregates information about individuals that is available on the Internet—such as age, wealth, marital status, education, employment status, etc.—and distills this information into individualized reports. Spokeo makes money by selling these reports, often to employers, landlords, and others interested in getting some quick intelligence on, for instance, potential hires and tenants. Spokeo therefore may be a credit-reporting agency subject to the federal Fair Credit Reporting Act (FCRA), which imposes statutory penalties on those who willfully publish inaccurate consumer reports. Thomas Robins sued Spokeo in federal district court for allegedly publishing inaccurate information about him in such a report. Among other errors, Robins alleges that Spokeo misstated his marital status and overstated his education and wealth. Robins alleges that these errors likely harmed his employment prospects, and he asserts that he suffered anxiety and stress over his diminished employment prospects.
Spokeo persuaded the district court to dismiss the case for lack of standing because Robins had not adequately alleged injury in fact—that is, any actual or imminent harm. But the Ninth Circuit reversed, holding Robins had standing because his statutory rights were violated and the violation was particularized to him. The court’s discussion of the requirement that the injury be concrete is short and a bit confused, but it suggests Robins’s alleged injury is concrete simply because it is particularized. The Supreme Court granted certiorari, which suggests that at least four justices think the meaning of concreteness as an independent requirement of standing needs some clarification.
Conventional views of the left, right and center were on full display at Monday’s oral argument. On the left, Justice Sotomayor repeatedly stated her view that the particularized violation of any legal right conferred by Congress is an injury in fact sufficient to create standing. On the right, Chief Justice Roberts posed a number of hypothetical questions apparently intended to point out what he sees as the absurdity of standing in the absence of concrete, or “actual,” injury. For example, he posited a statute providing a penalty for publishing inaccurate information about individuals and a person who has an unlisted phone number. Imagine a company publishes the individual’s phone number but makes a mistake and publishes the wrong number—which of course cannot result in unwanted phone calls to the individual. To the Chief Justice, this would a statutory violation that results in no injury in fact to that individual, such that the individual would lack standing to sue.
In between seemed to be Justice Kagan, who apparently agrees with the Chief Justice that a particularized statutory violation is not necessarily enough to confer standing, but who seems inclined to take a much broader view of the kinds of harms that can constitute concrete injury. And she makes clear that the dissemination of inaccurate information about an individual seems like a concrete injury to her. (In this regard, the federal government’s brief pointed out that history provides examples of injuries—such as injuries in defamation—that have been recognized by courts even in the absence of demonstrable financial harm.)
Justice Kennedy, who might very well cast the deciding vote (assuming the Court does not think better of using this case to issue a major decision on standing, in which event the Court would have a number of fact-specific ways to dispose of the case on narrow grounds), apparently subscribes to the view that concrete, or “actual,” injury, rather than just a particularized legal injury, is required. And he seems at least skeptical that Robins has alleged what is required.
What is really going on here, and what is at stake? One important element is a power struggle between the Court and Congress. If Article III makes concrete injury a prerequisite for federal court standing and if concreteness is a high bar, then congressional power to remedy perceived problems is diminished. If concrete injury is necessary and read here to require economic harm, then it will be harder for Congress to prevent credit-reporting agencies from disseminating false information. (Congress still has tools at its disposal, but empowering individuals to sue in federal court without having to show economic injury will not as easily be one of them.) How much Congress’s power is constrained depends on how far an “injury in fact” can depart from traditionally recognized injuries such as economic loss. (It is true that Robins’s complaint may be read to allege economic injury insofar as he asserts diminished employment prospects, but that injury may be too vague and speculative for the Court to accept.)
Another part of what is going on may have to do with a desire to maintain a flexible doctrine under which federal courts can get rid of difficult or fraught cases on ostensibly procedural grounds without having to reach the merits. Sometimes reaching the merits is unappealing for political or other reasons, and courts may appreciate having a fuzzy jurisdictional doctrine with which to let themselves off the hook. Of course, the legitimacy of ostensibly dismissing a case on procedural grounds when the real reason for doing so rests on the merits is itself open to question.
On a deeper level, there might be a clash of worldviews. Those on the right of this issue may tend to see morality as given and immutable, whereas those on the left may tend to see it as a revisable human construct. For those on the right, an injury is concrete—i.e., real—only if it tracks traditional concepts of injury, which in turn are based on traditional notions of morality. Those on the left, in contrast, are willing to let Congress decide what constitutes a redressable injury, even if that means recognizing novel or subtle injuries.
The relevance of tradition in deciding which injuries to recognize is interesting to consider. As noted earlier, there have been some non-economic injuries that have been recognized throughout Anglo-American legal history, so that even if one were focused on tradition, Robins (who can analogize to some of them) very well should prevail. But in general, an emphasis on history and tradition will work to limit rather than expand Congress’s ability to enlist private lawsuits to enforce valid federal statutes. In some areas of constitutional law, such as substantive due process fundamental rights, some justices seek to use history and tradition to prevent unelected judges from imposing their own policy preferences in the name of the Constitution. But since in Spokeo and similar cases Congress—an elected representative body—has seemingly authorized federal courts to act, the virtue of rejecting admittedly particularized injuries simply because they do not conform to historical notions of concreteness is arguably a very different matter.
I love these conservatives who hate going beyond the language of the constitution. I must have been sleeping when my con law prof talked about the constitutional provision that said that federal court jurisdiction needed an “injury in fact,” or a “concrete and particularized, actual or imminent invasion of a legally protected interest” in addition to the need for a controversy.