Standing in the Shadow of Congress

Abstract

In Spokeo v Robins, the Supreme Court confronted one of the harder questions of its intricate law of standing to sue. The question is whether Article III of the Constitution limits Congress's ability to create legal rights that can be vindicated in federal court -- and, if so, what those limits are. The Court's cases had provided two contradictory approaches to answering it. Boxed in by these conflicting precedents, Spokeo failed to resolve the problem. The violation of a legal right can support standing, said the Court, only if it represents an injury that is “concrete” -- a term that simultaneously includes some “intangible” injuries, but requires that they be “real.” These terms, and the Court's explanation of them, do little work to answer the core question. And to the extent that they do point to a general approach, that approach is a wrong turn. But Spokeo also produced a glimmer of hope for approaching standing in the future: a concurring opinion by Justice Thomas, building off of an important line of scholarship on the long-standing difference between public rights and private rights. While Justice Thomas's proposal is not yet fully developed, it may provide a theoretically satisfying way to make sense of the Court's approach to statutory standing. Even if his answers are not perfect, they are answers to the right questions, which will reframe the problem of standing in a helpful way. Justice Thomas's concurrence may be one of the most fruitful things to happen to standing at the Supreme Court in many years. The rest of this article explains the problem of standing in the face of Congress's creation of statutory rights. Part I describes the basic problem and the prior cases that address it. Part II describes the Court's attempted answer in Spokeo. Part III argues that Spokeo's answer is unhelpful and even problematic, and could have ominous implications for the law of privacy and other areas of substantive law. Part IV shows why Justice Thomas may have provided a better way forward.

Keywords: Standing, Article III, Injury, Lujan, Spokeo, Congress, Privacy, Private Right, Public Right, Muskrat