The Powerful Voice: Justice Scalia, Statutory Standing, and Narrowing the Spokeo Class

Sometimes the most powerful voice in the room is the one not present. This wascertainly true in Spokeo v. Robins, No. 13-1339, slip op. (May 16, 2016). Justice Antonin Scalia,who passed away before the case was decided, had the largest imprint on the various opinions.

He not only framed Justice Alito’s majority opinion,slip op. at 9-10, and Justice Thomas’sconcurrence, slip op. at 4 (Thomas, J., concurring), but he even helped frame Justice Ginsburg’sdissent, slip op. at 3-5 (Ginsburg, J., dissenting). Even so there seems little doubt that Robinswill ultimately be afforded standing. The opinion’s more profound effect will involve a doctrineon which the Court spent almost no time, slip op. at 6 n.6, namely, narrowing the class that Robins claims to represent.

An Ill-Suited Vehicle for Scalia's Broader Standing Project

Despite Scalia’s influence, the Spokeo Court has now transformed the case into an ill-suited vehicle for his broader standing project, imposing stringent common-law-basedrestrictions on congressional authority to confer standing, Lujan v. Defenders of Wildlife, 504U.S. 555 (1992). Although the Spokeo majority remanded to ensure that Robins’s claimed injurywas not only particularized, but also concrete, Robins’s standing is a near certainty. On remand,the United States Court of Appeals for the Ninth Circuit will reach the same result, but will do soplaying by Scalia’s rules.

The Spokeo contribution to black letter law is easy enough to state: As part of standingdoctrine’s injury-in-fact requirement—one of three constitutional standing elements along withcausation and redressability—a claimant must now prove that the claimed injury is bothparticularized and concrete. Slip op. at 2. Earlier courts and commentators viewed these termsas complementary descriptors of a single requirement, not as criteria with separate normativesignificance. Slip op. at 4 (Ginsburg, J., dissenting) (“[I]n the four cases cited by the Court, andmany others, opinions do not discuss the separate offices of the terms ‘concrete’ and‘particularized.’”). The court below demonstrated that the published misinformation, whichappeared to place Robins in too favorable a light, was particularized to him. On remand thatcourt must now clarify that if proved, the seeming insult-by-compliment can also produceconcrete harm.

Any doubt on that score is belied by the majority’s placing the statutory standing goalpost within such accessible bounds that the dissent has already ably coached just where andhow to kick the ball. We now know that the misstatement of a zip code by a company subjectto the Fair Credit Reporting Act, Pub. L. No. 91-508, 84 Stat. 1128 (1970) (codified at 15 U.S.C.§ 1681 et seq.), pursuant to prescribed procedures intended to ensure accuracy, may produce aharm that is particularized but not necessarily concrete. It is not hard to imagine a false zip codeachieving both features if, for example, an insurance company or credit rating agency relied ona disadvantageous zip code to set premiums or to assess credit risk. As the dissent explained, in this case we know the precise nature of Robins’s concrete injury: the loss of prospectiveromantic partners who might mistakenly believe he is married, and of prospective employerswho might mistakenly conclude that his overstated qualifications and job status likely renderhis salary demands out of reach. The dissent thus would have avoided a remand requiring thatthe Ninth Circuit tell us what everyone already knows.

Standing's Constitutional Foundations

Scalia’s larger project was to transform standing’s constitutional foundations. Maxwell L.Stearns, Spokeo, Inc. v. Robins and the Constitutional Foundations of Statutory Standing, 68VAND. L. REV. EN BANC 221 (2015). Under traditional standing conceptions, epitomized, for example,by Allen v. Wright, 468 U.S. 737 (1984), standing doctrine preserves congressional power toregulate and monitor the executive branch. In this reading, the case or controversy requirement ensures that absent a set of justificatory triggers, captured, for example, in the constitutional standing criteria—injury in fact, causation, and redressability—the judiciary presumes against interposing a remedy for a claimed constitutional violation. Instead, the Court prefers to reserve to Congress the power to choose the remedy itdeems appropriate. By contrast, the Court routinely creates remedies for constitutionalviolations where a convicted criminal would otherwise suffer direct sanctions at the hands ofthe state. As such cases as Miranda v. Arizona, 384 U.S. 436 (1966), Weeks v. United States, 232U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961), illustrate, this is the bread and butterof constitutional criminal procedure.

This conventional theory of standing couples judicial restraint with broad congressionallatitude to devise novel remedial schemes. This latitude has historically included congressionalpower to define injuries by statute that would not have been recognized at common law. Thisexplains the historical distinction between the constitutional standing barriers and suchprudential barriers as the presumed inability to litigate the claims of others and to litigateclaims that are legally diffuse, even though more recently the Supreme Court has consideredgiving the latter constitutional status. Lexmark Int'l, Inc. v. Static Control Components, Inc., 134S. Ct. 1377, 1383 n. 3 (2014). This distinction has also generally afforded Congress the power toconfer upon individuals the status of private attorneys general. Justice Kennedy nicely capturedthis power in his separate Lujan opinion, stating: “In my view, Congress has the power to defineinjuries and articulate chains of causation that will give rise to a case or controversy wherenone existed before, and I do not read the Court’s opinion to suggest a contrary view.” Lujan v.Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurringin the judgment) (citation omitted). Kennedy’s qualifier informed particularity, notconcreteness: “In exercising this power, however, Congress must, at the very least, identify theinjury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” Id. In his separate Spokeo opinion, Justice Thomas suggests that congressional latitude might bebroader in cases like this one in which the claimant seeks private relief that does not implicategovernmental action. Slip op. at 5 (Thomas, J., concurring).

There are sound policy justifications for judicial reticence when the basis for a claim isan abstract constitutional violation untethered to the kinds of circumstances that correlate withconventional litigation. Courts appear ill equipped to resolve disputes based on abstractinquiries. And unconstrained by standing and other justiciability constraints, interest groups canfavorably manipulate case orderings to exert a disproportionate influence on the developmentof substantive constitutional doctrine. See Maxwell L. Stearns, Standing Back from the Forest,Justiciability and Social Choice, 83 CALIF. L. REV. 1309 (1995). Relying on standing, a doctrinepremised on the separation-of-powers concern of judicial encroachment on legislativeprerogatives, to instead limit congressional flexibility in devising novel injuries risks thwartingthe doctrine’s central purpose.

A Pyrrhic Victory? The Impact onClass Actions

In the end, Spokeo might prove a pyrrhic victory: Justice Scalia has formally demandedas part of standing doctrine common law features even in cases presenting statutorily definedinjuries. As the dissent ably demonstrates, the demands are so slight as applied to the case asnot to affect the outcome. But this silver lining carries an accompanying cloud: Robins’seventual standing might prove inconsequential to those with the real financial stakes: his classaction lawyers. Rule 23 of the Federal Rules of Civil Procedure requires commonality respectingissues of law or fact, and that the nominal class representative fairly represent the classmembers. Fed. R. Civ. P. 23. And here the line between particularity and concreteness mightjust matter. Even with these now distinct features of standing, Robins can demonstrate hisinjury, which is far more concrete than a misstated zip code. That is no small matter. We mightimagine, for example, everyone’s zip code off by a single digit, and with that, Robins standing infor a tremendously large class. Now we know that a trivial zip code injury, although particular,might not be concrete. And if the only concrete claim Robins now has standing to press is hisrather unusual injury through flattery, as opposed to any misstatements in personal searchprofiles resulting from Spokeo’s alleged willful failure of diligence, this case might emerge notonly as a poor vehicle for the larger Scalia project on standing, but also an unattractive vehiclefor the ultimate stakeholders in the Spokeo litigation.

Maxwell L. Stearns, Professor of Law and Marbury Research Professor, University of MarylandCarey School of Law. Special thanks to Richard Boldt, Don Gifford, Mark Graber, and AaronZelinsky for their helpful comments, and to Susan McCarty for her excellent library support.