The Court and the Private Plaintiff

Abstract

For over a decade, the Roberts Court has invoked separation of powers to erode private damage actions, and the most recent term was no different. The Court is simultaneously doing two hard-to-reconcile things. First, it has taken itself out of the business of creating rights of action. Congress, not the federal judiciary, properly weighs the costs and benefits of permitting litigation. Bivens and the implied right of action cases lie atop the scrap heap; the Court has made clear that federal courts will no longer muck around in legislative policy choices about who can sue and when. Second, where Congress has created a right and right of action, the Court has elevated the injury-in-fact requirements in the Article III standing inquiry. Now, despite a statutory right, federal courts are to make their own, independent calls as to whether a private plaintiff has an injury sufficiently imminent and concrete to proceed. These heightened standing requirements invite federal courts to second-guess legislative policy choices and upend congressional efforts to prevent harms. Simultaneously, in two lines of cases, the Court has both sidelined federal courts from participating in the legislative process and invited them right back in.

This Article makes two key contributions. First, it demonstrates that recent standing cases have involved the federal judiciary deeply in the scrutiny of congressional ends and means—despite the dictates of rational basis review and the deference the Court is professing at the same time in the implied right of action context. Second, notwithstanding this evident disconnect, this Article finds a through-line in the Roberts Court’s antipathy to the damage-seeking private plaintiff. The Court no longer creates rights of action itself, but it does not want Congress creating them, either. This Article grounds the Roberts Court’s aversion to private enforcement in its emphatic embrace of the unitary executive, its preference for under-enforcement born of hostility to the plaintiffs’ bar, and its pro-business inclination to curtail suits that impose industry-wide rules and costs. Under the banner of separation of powers, this Article argues, the Roberts Court is achieving what critics of private litigation have struggled to attain in the political arena.

Keywords: federal courts, standing, bivens, roberts court, separation of powers