Jurisprudence

The Supreme Court’s Conservatives Issued a Decision Too Extreme for Clarence Thomas

In a sweeping 5–4 decision, the court stripped Congress of its power to create new rights.

Justice Clarence Thomas walks into a room with a decisive stride.
Justice Clarence Thomas arrives for the ceremonial swearing in of Justice Brett Kavanaugh at the White House in 2018. Chip Somodevilla/Getty Images

On Friday, the Supreme Court pulled off a heist decades in the making. In TransUnion v. Ramirez, five conservative justices seized Congress’ power to create new individual rights and protect victims by authorizing lawsuits when those rights are violated. Instead, the court awarded itself the power to decide which rights may be vindicated in federal court, overturning Congress’ own decisions about which harms deserve redress. Justice Brett Kavanaugh’s opinion for the court was so extreme it prompted Justice Clarence Thomas to write a furious dissent, joined by the liberals, that accused the majority of infidelity to the Constitution. But because of the court’s 6–3 conservative supermajority, Thomas’ defection from the conservative bloc did not change the outcome. And now, thanks to Friday’s decision, a huge number of Americans harmed by a flagrant violation of the law will be locked out of the federal judiciary altogether.

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TransUnion revolves around “standing,” or an individual’s ability to file suit in federal court. The Constitution allows federal courts to hear only “cases” or “controversies,” and the Supreme Court has interpreted this language to limit the kinds of disputes that these courts can entertain. Specifically, SCOTUS has held that a person may only sue in federal court if they suffered an “injury in fact,” also called a “concrete harm.”

Some concrete harms are obvious: An abridgment of constitutional liberties, for instance, plainly qualifies; so does a physical or financial injury. But what about less traditional harms? Friday’s case provides a good example. TransUnion, a credit reporting agency, incorrectly flagged thousands of people as potential terrorists and drug traffickers using an incredibly sloppy and inaccurate system. Some victims were denied credit because TransUnion told businesses they were serious criminals. Others were never actually denied credit, but they still suffered: TransUnion did not tell these individuals that the company had flagged them as serious criminals and declined to provide them with a “summary of rights” required by law.

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Did this second class of victims suffer a concrete harm? Congress certainly thought so. When it passed the Fair Credit Reporting Act in 1970, Congress required credit reporting agencies to follow procedures that would ensure accuracy, send consumers their entire credit report upon request, and inform consumers of their legal rights. Cognizant that the FCRA would not enforce itself, Congress also gave consumers the ability to sue credit reporting agencies that violate the statute, and to collect damages from lawbreakers. In other words, lawmakers declared that a violation of FCRA, in and of itself, was an infringement of rights that could be vindicated in federal court.

For many years, conservative justices complained about Congress’ ability to create new, enforceable rights like these. And for just as long, more moderate justices like Anthony Kennedy rejected their view, preserving lawmakers’ authority to establish new rights by statute.

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On Friday, however, Kavanaugh blew past those precedents, rejecting Kennedy’s moderation and announcing a new rule: Federal judges, not the people’s representatives, get to decide which rights may be vindicated in the federal judiciary. By extension, only federal judges get to decide what counts as a concrete harm sufficient to create standing. It is not enough for Congress to determine that certain rights deserve remedies in federal court. Instead, according to Kavanaugh, federal judges must second-guess Congress’ work by deciding which harms are truly concrete. And here, Kavanaugh wrote, this rule requires courts to toss out the claims of 6,332 people who were falsely flagged as criminals, then lied to by TransUnion but never explicitly denied credit because of the company’s error.

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As Thomas noted in dissent, this conclusion clashes with precedent reaching back to the founding. From the start, federal courts acknowledged that an “injury-in-law”—that is, a violation of private rights enshrined in law—established standing. And courts did not require plaintiffs who suffered a violation of their private rights to show some other, more “concrete” injury. “This understanding,” Thomas wrote, “accords proper respect for the power of Congress and other legislatures to define legal rights.” In TransUnion, by contrast, the Supreme Court abandoned that respect, stripping Congress of the power to create “legal rights enforceable in federal court.” Put simply, Kavanaugh shattered the separation of powers in the name of safeguarding them. Or, as Justice Elena Kagan wrote in her own dissent: “The court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.”

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The consequences of this radical break from precedent will be severe. As Lindsey Barrett, Fritz Family Fellow and adjunct professor of law at Georgetown, told me on Friday, TransUnion “may be particularly damaging to victims of privacy and environmental harms,” whose injuries can be harder to quantify. (There are plenty of privacy laws like the FCRA that rely on individual victims to enforce their guarantees, including the Wiretap Act.)

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“Judicial skepticism of privacy rights—and judges using standing to keep those claims out—has been a problem for a long time,” Barrett pointed out, “and TransUnion will make it worse.” The decision will have an especially outsize impact on class action lawsuits, which allow multiple victims to band together and pursue violations of federal law collectively. It could also undermine civil rights enforcement. Many groups hire “testers” who (for example) apply to rent a home to test compliance with fair housing laws; if they experience discrimination, is that still concrete harm even if they didn’t intend to rent the property? And what about civil rights lawsuits that don’t involve concrete physical or economic damages, like an illegal search? As UCLA Law professor Andrew Selbst noted, victims of such abuse may no longer have standing to get into federal court.

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If there is any silver lining to TransUnion, it is the fact that the Supreme Court did not—indeed, cannot—prevent state courts from enforcing federal laws like the FCRA. As Thomas wrote, this option renders the court’s decision something of a “pyrrhic victory” for TransUnion and other corporations. It might sound counterintuitive, but state courts have the power to enforce federal laws. And about half the states have adopted a looser view of standing that does recognize violations of the law as redressable harms, without the extra requirement that Kavanaugh imposed on Friday. Victims of corporate malfeasance who get kicked out of federal court under TransUnion can therefore sue in one of these states’ courts, instead. It will be much less efficient, and may spawn duplicative litigation in different states. And no one should have to run to a random state’s judiciary to vindicate rights guaranteed to them by Congress. But it should suffice as a workaround.

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While Kavanaugh deserves the bulk of the criticism for his disingenuous TransUnion opinion, the decision would not have been possible without Amy Coney Barrett’s vote. Thomas, to his great credit, adheres to originalism and textualism in many cases that involve class actions (which conservative jurists tend to despise). Unlike his conservative colleagues, he is often willing to adhere to the original meaning of the Constitution in this context, even when his methodology leads to a “liberal” result. Thomas’ consistency on standing is especially helpful to class action plaintiffs who can prove that a corporation ran afoul of a federal law that shields their private rights.

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If TransUnion had been decided last year, the plaintiffs would have won by a 5–4 vote. But because Barrett replaced Justice Ruth Bader Ginsburg, it came down 5–4 against the plaintiffs. That’s the impact of a 6–3 conservative majority: One defection is no longer enough. Barrett, Kavanaugh, and their other conservative colleagues were all too happy to craft a freewheeling new rule rooted in the tradition of “living constitutionalism.” That rule will make big companies like TransUnion very happy, since they have won yet another tool to crush class actions. But it should not please anyone who thinks Congress ought to have a meaningful say in which rights our courts must protect.

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