Chief Justice John Roberts, Metaphysician

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When John Roberts was nominated to be Chief Justice of the Supreme Court, much was made of his reluctance to spell out his judicial philosophy. Roberts memorably compared himself to a baseball umpire, promising,”I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Yesterday, Roberts, probably without realizing it, tried his hand at some plain old philosophy – and in baseball terms, he struck out swinging.

The issue in Spokeo v. Robins, which was argued yesterday, is whether the Constitution permits a person to sue someone else purely for violating a right provided by federal statute, without claiming any further negative consequences. Thomas Robins sued Spokeo, a “people search engine,” for disseminating false, but not defamatory, information about him in violation of the Fair Credit Reporting Act (FCRA). Spokeo claims that Robins lacks “standing,” that is, the right to sue, because he didn’t suffer a “real-world injury.”

As I wrote last week, that framing is misleading: in many areas of American law, including contracts, trespass, and copyright, standing doesn’t require anything more than showing that you had a legal right and that right was violated.

The real question, then, is whether Congress has the power to define new legal rights – as the Supreme Court has long held it does – or whether there’s a set number of rights, frozen at some point in legal history, violations of which are sufficiently “real” or “concrete” to give someone standing.

Spokeo takes the latter view. Andrew Pincus, the lawyer representing Spokeo, argued that examples like trespass and copyright infringement are “actual harms” because they are invasions of property rights, which makes them tangible. Pincus never actually explained what “tangible” means in this context – one can’t “touch” a trespass or an infringement – or why that makes something more real than a violation of any other right. No justice ever asked the simple question, “What is an injury?” That was lucky for Spokeo, because there is no answer that can make sense of existing law while excluding Robins’ claim.

The assumption behind Spokeo’s argument is that there’s such a thing in our legal system as a “real-world injury,” existing in the world as an objective, freestanding fact, and Congress can only recognize that kind of injury. But that is nonsense. The idea that I can sue you for walking across my lawn wasn’t floating in some Platonic antechamber, waiting for Anglo-American law to recognize it; the right only exists because our society long ago decided that people should be able to exclude each other from their property. When a court asks whether someone has suffered an injury, it’s really asking two questions: first, did the alleged facts actually happen; and second, do those facts, if they happened, constitute a legal injury? Only the first question is”factual.” The second is necessarily a judgment – by judges or legislators – that something is bad and that people ought to be able to sue to prevent it.

American law recognizes all kinds of things as legal injuries, and the only common thread is that someone breached a duty he had toward someone else. Some duties involve physical harm or economic loss, but many don’t. Here are some uncontroversial examples of the latter type, pointed out in an amicus brief submitted by a group of legal scholars: a boss can sue to recover a bribe or kickback paid to an employee, regardless of whether it negatively affected the employee’s performance; you can sue a trustee who takes a business opportunity that might have interested you, even if you wouldn’t have pursued it; a corporation can sue to recover profits made through insider trading on corporate information whether or not the trade cause the corporation any harm; I can sue for the profits made by unlicensed use of a copyright or trademark that I own, even if that use had no effect on my own profits.

There is just no way to give a definition of what Roberts kept referring to as “injury in fact,” as opposed to “injury in law.” Whether I owe you a duty is not a fact about the world; it’s a public policy choice.

Roberts’ questioning suggested that he wasn’t ready to give up the myth of the “real-world” injury. He tossed out three hypotheticals during the argument that tripped up the lawyers arguing for Robins pretty badly, but which should have been easy.

First, he asked, what if a statute provided a $10,000 remedy for having false information published about you, and a company publishes an inaccurate phone number, but your real phone number is unlisted and you don’t want people calling you anyway? “That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?”

William Consovoy, Robins’ lawyer, hemmed and hawed, but the answer was clearly “yes.” In other contexts of the law, injury doesn’t depend on your personal preferences – I can sue for breach of contract even if I secretly didn’t want to uphold my end of the deal.

Second, Roberts asked about a version of the law that entitled the consumer to annual payments of $10 – “no more, no less.” Would you have standing if the company paid you $20?

Here, the answer should have been: probably not, because the “no more” part sounds like it’s meant to limit the defendant’s liability. But if the law is written in a way that shows that Congress was creating an individual right to not be paid too much money, then, yes, sure, you’d have standing. Congress can write stupid laws.

Finally, Roberts asked Deputy Solicitor General Malcolm Stewart, who also argued Robins’ case on behalf of the government, about a hypothetical law letting “anyone in a border state” who is unemployed sue any “illegal immigrant who has a job.” This should have been the easiest one of all to deal with, because missing out on a job opportunity is exactly the kind of “concrete harm” that Spokeo argues would give someone standing. The problem with the hypothetical is not concreteness, it’s that the law would fail other components of standing doctrine: that the injury must be “particularized” to the person suing, and causally traceable to the defendant’s actions.

In short, none of Roberts’ hypotheticals actually illustrated the idea that some injuries are “real” and some aren’t. The lawyers to whom he posed this question missed the chance to point that out.

Consovoy, Robins’ lawyer, did have one strong moment. In response to the argument that the FCRA violation is a concrete injury, Roberts pressed him to identify “the injury in fact – not in law, but in fact.”

Consovoy tried to shoot that down. “I don’t think the contradistinction is between an injury in fact and an injury in law,” he said. “A legally vested interest, whether it’s created by Congress or created by the common law, is itself a concrete injury.”

“But our cases have always said ‘actual injury in fact,'” Roberts persisted. “And I thought that meant that that was different than actual injury in law. You’re saying, when we say injury in fact, we really mean injury in fact or injury in law?”

“No,” said Consovoy. “I don’t really think there is a term ‘injury in law.’ I’ve not seen it in the cases.”

Gilad Edelman

Gilad Edelman is an editor at the Washington Monthly.