A question for the Founders

High court case touches on standing, separation of powers

De Novo Review

Michael Scodro

Michael Scodro is a partner in the appellate and Supreme Court practice group at Jenner & Block. In 2014, he joined the firm after serving for more than six years as Illinois solicitor general. Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and is vice president of the Appellate Lawyers Association.

December 2015

The U.S. Supreme Court confronts a number of high-profile issues this term, including affirmative action in university admissions and voting rights.

Among the perhaps less talked-about cases on the court’s fall argument docket, however, is one — Spokeo Inc. v. Robins — that invites the court to address significant separation-of-powers questions in connection with a challenge to the constitutional limits on standing to sue in federal court. To be sure, the party briefs also debate Framing Era history and the meaning of the court’s past decisions on standing, but interlaced with these arguments is an intriguing dispute over the role that standing principles play in preserving the balance of power among the three branches of federal government.

The case’s underlying facts are simple enough. Spokeo runs a website that collects information on people and makes the data available to users in a searchable format. Thomas Robins (on behalf of a putative class) contends that the facts Spokeo offered about him were false. Among the alleged inaccuracies, the website informed users that Robins possessed more education, and more money, than he actually did. Robins v. Spokeo Inc., 742 F.3d 409, 411 (9th Cir. 2014).

The problem is that Article III of the Constitution requires plaintiffs to show that they have incurred some “injury-in-fact,” and Robins cannot identify any direct pecuniary or other, traditionally recognized injury arising from the alleged misstatements in his case.

The federal Fair Credit Reporting Act may offer a solution. Robins contends that Spokeo is a “consumer reporting agency” within the meaning of act. And the 9th U.S. Circuit Court of Appeals concluded that, because Robins alleges that Spokeo violated the act willfully, Robins is entitled to a statutory penalty of between $100 and $1,000 even without “a showing of actual harm.” Id. at 412. It was within Congress’ authority, the court of appeals determined, to treat a violation of the act as legally cognizable, actionable harm sufficient to confer standing to sue in federal court. Id. at 413-14.

Spokeo insists that Article III standing demands more. “[B]are violations of federal statutes, without any accompanying concrete harm,” Spokeo contends, “are insufficient to establish injury in fact and, consequently, [Robins] lacks Article III standing.” Spokeo Br. 10. Among other things, Spokeo argues that strict limits on federal courts’ power to resolve disputes prevent these courts from stretching their authority beyond what the Constitution permits. Id. at 27-28.

At the same time, Spokeo continues, these limits stop “Congress from impermissibly delegating to private plaintiffs the executive’s duty to enforce the law.” Id. at 27.

In short, checks on standing prevent the unconstitutional expansion of judicial power, while at the same time ensuring that private plaintiffs do not encroach on the prerogative of the executive.

Robins responds that his suit “does not implicate separation-of-powers concerns.” Robins Br. 48. Perhaps it would, Robins acknowledges, if he sought to compel or enjoin conduct by a federal agency or challenged the constitutionality of executive or congressional action. Id. at 49.

Robins recognizes, moreover, that federal courts must not entertain claims by plaintiffs with no more at stake than the broadly shared interest in seeing that others comply with the law. Id. at 48-49.

But Robins concludes that where, as here, he “allege[s] a concrete and particularized invasion of his own legal rights under the [act],” Id. at 31, it would intrude upon Congress’ constitutional power for federal courts “to substitute their normative judgment for Congress’ when Congress has determined that a private interest warrants statutory protection,” Id. at 51.

If anything, Robins concludes, it is therefore Spokeo’s proposed rule that would “undermine the separation-of-powers principles that have guided [the] court for over two centuries.” Id. at 48.

Supporting Robins on behalf of the United States as amicus curiae, the solicitor general agrees that — so long as a plaintiff “seeks relief for a violation of his own statutory rights, involving conduct that is directly and substantially connected to him” — the plaintiff “does not perform an executive function” in violation of separation-of-power principles. U.S. Br. 29.

Of course, the court may resolve the case without addressing these issues.

An opinion might focus instead on the court’s own precedent or on Framing Era history, and Spokeo invites the court — as an alternative to answering the constitutional standing question — to construe the act to require a showing of actual harm even for willful violations. See, e.g., Spokeo Reply 23-24. But if the court does address the parties’ separation-of-powers arguments, Spokeo Inc. v. Robins may provide an important window into this structural, constitutional facet of the court’s standing jurisprudence.