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Spokeo, Inc. v. Robins: The Conservative Attack on Standing Stalls

Tuesday, May 17, 2016

Spokeo, Inc. v. Robins, this Term’s big case on Article III standing, was closely watched as a potential blockbuster ruling that could limit the power of Congress to give consumers a right to sue in federal court for the violation of federal credit reporting protections. But with the death of Justice Antonin Scalia, the Court’s conservative wing lacked the votes to move the law to the right. Instead, in a very short 6-2 opinion, written by Justice Samuel Alito, the Court sent the case back to the lower courts, calling the Ninth Circuit’s analysis of plaintiff’s standing to sue “incomplete.”

While the ruling put off a final decision in the case for the time being, each of the opinions in the case affirmed, in important ways, that Congress has the power to ensure that consumers can seek redress in court when companies violate their federal legal rights. Every member of the Court recognized, as Justice Ruth Bader Ginsburg observed in dissent, that “Congress has the authority to confer rights and delineate claims for relief where none existed before.” Under the principles announced by the Justices, Robins should get his day in court.

Justice Alito’s opinion held that the Ninth Circuit should have asked whether Thomas Robins, the plaintiff in the case, had suffered a concrete injury when Spokeo misrepresented his credit information. As Alito wrote, “Article III standing requires a concrete injury even in the context of a statutory violation.” But Justice Alito cautioned that “intangible injuries can . . . be concrete” and that injuries can be concrete “even if their harms may be difficult to prove or measure.” Drawing an analogy to libel and slander cases, Justice Alito explained that “[j]ust as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient to constitute injury in fact. . . A plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.”

Thus, while some concrete harm is required, the Court took pains to define the required injury in a broad manner. Significantly, in dissent, Justice Ginsburg agreed with Alito on the meaning of Article III’s case and controversy requirement, but argued that the Court should have simply let Robins’s complaint, which alleged that Spokeo’s misinformation harmed Robins’s employment prospects, go forward.  

In an important concurring opinion, Justice Clarence Thomas gave further reasons why Congress has broad powers to open the federal courts to suits by individuals against private defendants for violating federal rights. Justice Thomas—who often sided with Justice Scalia in limiting the power of the federal courts—argued that history supported a broad understanding of judicial power: dating back to the Founding, the common law power of courts to vindicate private, individual rights was broad and extensive. “In a suit for violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded. . . . Many traditional remedies for private-rights causes of action . . . are not contingent on a plaintiff’s allegation of damages beyond the violation of his private legal right.” Based on this long history, Justice Thomas observed that “the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own rights” and that “[a] plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.” While Thomas did not decide the ultimate question in the case, he observed that “[i]f Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact.”

This marks the second time this Term that Justice Thomas has observed that common law history can provide a strong foundation for affording individuals access to the courts. Earlier this term, in Campbell-Ewald v. Gomez—another of this Term’s big cases concerning class actions—Justice Thomas relied on common law history in rejecting a corporation’s claim that it could make an end-run around a class action suit by forcing the named plaintiff to settle for the full amount of recovery. In Spokeo, Thomas made a similar move, demonstrating that common law history supports a broad understanding of standing to redress private legal wrongs.

The Court’s decision in the case may have delayed final resolution of the question presented, but the Justices’ opinions in Spokeo make clear why Robins should ultimately get his day in court. They provide an important affirmation that Congress has the power to give consumers a right to sue when corporations violate their federal legal rights.