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

[ZiprHead]

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

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.

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.

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.

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.

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.”

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.)

“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.

 

[RVonse]

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

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.

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.

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.

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.

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.”

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.)

“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.

Is Clarence Thomas really becoming more liberal or does this article just use their definition of liberal vs conservative to get more click bait?

As has been mentioned by another poster of this board, the terms liberal and conservative are changing rapidly. For example in the 20016 POTUS election Trump was the liberal who wanted to change everything and Clinton was the conservative who wanted the existing swamp in place. What does a liberal or conservative mean at this point?

Maybe Clarence has changed into a liberal now but I doubt it. And I doubt even more that Kavinaugh is more of a conservative than Clarence.

 

[Harry Bosch]

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

Is Clarence Thomas really becoming more liberal or does this article just use their definition of liberal vs conservative to get more click bait?

As has been mentioned by another poster of this board, the terms liberal and conservative are changing rapidly. For example in the 20016 POTUS election Trump was the liberal who wanted to change everything and Clinton was the conservative who wanted the existing swamp in place. What does a liberal or conservative mean at this point?

Maybe Clarence has changed into a liberal now but I doubt it. And I doubt even more that Kavinaugh is more of a conservative than Clarence.

On possible issue was Trump a liberal? Because he pulled 1/3 o our troops out of Iraq?

 

[Harry Bosch]

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

Is Clarence Thomas really becoming more liberal or does this article just use their definition of liberal vs conservative to get more click bait?

As has been mentioned by another poster of this board, the terms liberal and conservative are changing rapidly. For example in the 20016 POTUS election Trump was the liberal who wanted to change everything and Clinton was the conservative who wanted the existing swamp in place. What does a liberal or conservative mean at this point?

Maybe Clarence has changed into a liberal now but I doubt it. And I doubt even more that Kavinaugh is more of a conservative than Clarence.

Actually, as I think about it, I realize that you might have said the above to be ironic. The classical definition of a liberal: willing to respect or accept behavior or opinions different from one's own; open to new ideas; relating to or denoting a political and social philosophy that promotes individual rights, civil liberties, democracy, and free enterprise.

Trump was the exact opposite of most of the above! He does not respect in the least the opinions of others, does not care in the least about civil liberties, completely anti-democratic (try to overturn our democracy). I will say that he's open to new ideas if they come from right wingers that he wants to curry. Maybe some can say that he cares about free enterprise. He does a little. But he routinely sues people to take advantage of them. He routinely breaks the law to collude in order to lower his taxes and gain advantages. That isn't free enterprise.

 

[zorq]

Desperate to try to justify his embarrassing voting choices in 2016, we now hear that the poster child for totally upending the American Healthcare industry in attempt at American UHC was actually a conservative who really wanted to entrench the swamp. Sure.

But really, if you look at it, the headline doesn't claim that Thomas is "more liberal" on this issue. It merely claims that he isn't as "extreme" as his fellow conservatives. Thomas has always prided himself on being a "strict constructionist." And he thinks that the precedent that is being overturned in this case is one that dates back to the "construction" of the constitution so he is really being very (traditionally) conservative in this judgement.

The liberals on the court aren't using the founder's intent quite as much to inform their judgement. They are recognizing the danger of allowing powerful entities to skirt the law by making it more difficult for the harm they cause to individual citizens to be recognized and addressed in court.