We add the Honorable Paul Matey to the list of federal appellate judges who have raised concerns about the content and direction of the Supreme Court’s standing jurisprudence. In a recent competition, in Barclift v. Keystone Credit ServicesJudge Matey raised concerns about how current doctrine directs courts to identify what qualifies as an “injury in fact” for purposes of Article III and, in the process (and quoting Justice Elena Kagan), suggested that the entire standing law “needs a rewrite.”
In question in Barclift was whether a consumer whose personal information was shared by a creditor with a third party, in violation of the Fair Debt Collection Practices Act, suffers harm that is sufficiently “concrete” to satisfy the requirements of Article III. Judge Arianna Freeman, joined by Judge Julio Fuentes, concluded that such “injury,” alone, is not sufficient, even if it violates federal law. Justice Matey dissented, holding that (at least according to the Supreme Court decision in TransUnione v. Ramírez), Barclift’s injury was enough.
Judge Matey’s opinion concurring in part, dissenting in part, and concurring in the ruling begins:
“Standing” is a term found in every first-year law school outline, but it is absent from the text of the Constitution, from discussions on Foundingera, from English and Roman history, and from the reported decisions of our federal courts for much of twentieth century. Ever-evolving, the modern judicially created standard confounds courts, commentators, and plaintiffs like Paulette Barclift who are told their claim is not “concrete” enough to adjudicate. Barclift claims Keystone Credit Services shared private information about her physical and financial health with “an untold number of people” at a dispatch center near her home. App. 62. Can you file a lawsuit for your alleged damages? Congress said yes, inserting a private right of action into the Fair Debt Collection Practices Act (FDCPA). And the Supreme Court explained that “disclosure of private information” has been “traditionally recognized as a basis for lawsuits in American courts.” TransUnion LLC v. Ramírez, 594 US 413, 425 (2021). I conclude that Barclift’s “intangible damages” are sufficiently “concrete” to stand because they have “a close relationship to the damages traditionally recognized as the basis for lawsuits in American courts.” ID.
But Barclift loses because the majority treats TransUnion’s footnote six as talismanic, turning the maxim into precedent and, along the way, adopting the point-by-point reading of case law that the majority opinion purports to reject. With all due respect, I cannot pour so much meaning into one note, particularly where the result only adds to the incoherence of the modern position. So I disagree in part and in the ruling because, while she “needs a rewrite”, as the requirements stand, Paulette Barclift should appear in court. ID. at 461 (Kagan, J., dissenting).
During application TransUnion, Judge Matey spares no criticism. He writes:
That decision [TransUnion] it marked the first time the Supreme Court required a private individual to demonstrate concrete harm, even if he was trying to assert a private right. See 594 US at 453–54 (Thomas, J., dissenting) (“Never before has this Court held that legal harm is inherently insufficient to support standing.”). . . . And the metric chosen to measure concreteness – the close relationships test – has replaced the text and history of Article III with unspecified and indeterminate indicators in American “history and tradition.” TransUnion, 594 US out of 424 (majority opinion). A plaintiff’s allegations do not have to be “accurate.”[ly] duplicate” elements of a common law cause of action, resembles only “damage.”[s] associated with” such causes of action. ID. at 432–33.
This illustrates a judicial test “displac[ing] . . . primary, nonjudicial, controlling texts.” OI Eur. Gr. BV v. Bolivarian Republic of Venice., 73 F.4th 157, 175 n.22 (3d Cir. 2023) (citation omitted). . . . Leaving us to work only with a “law metaphor” rather than the law itself. Mitchell de S.-O.-l’E. Lasser, “Literary Theory” Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse, 111 Harv. L. Rev. 689, 768 (1998)).
But we must work with the shadow, because “unless we wish anarchy to prevail within the federal judicial system,” the lower federal courts must follow precedent, no matter how much the judges of those courts may think that is misleading. Hutto v. Davis, 454 US 370, 375 (1982) (per curiam). So I move on to the best read of TransUnion.
Judge Matey is not the only federal appellate judge to express concerns about standing in recent years. TransUnionin particular, it doesn’t seem to be too popular with many judges.
In particular, Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit highlighted the problems with existing case law and its application. In several recent concurring opinions, Justice Newsom has expressed concern that the current doctrine is inconsistent, difficult to apply, and insufficiently grounded in the constitutional text. (He addressed this issue, among other things, in his Sumner Canary lecture at the CWRU.)
Judge Newsom didn’t just criticize existing doctrine. He also suggested an alternative: abandon the “injury in fact” requirement and at the same time (re)invigorate Article II limitations on the ability of private individuals to enforce federal law. It’s an interesting and provocative proposal that is receiving attention. For those interested, I will analyze and evaluate Judge Newsom’s “standing without injury” proposal in a future article Wake Forest law review item.
One particularly interesting thing about judicial criticisms of modern doctrine is that many of them come from conservative judges. Modern law, especially based on that of Justice Scalia Lujan opinion, has generally been seen as a conservative jurisprudential project. Yet, as illustrated by Justice Thomas’s dissent in TransUnion, conservative justices are no less likely than their liberal colleagues to raise questions about how current doctrine is applied, if not also about the extent to which that doctrine finds its own textual space in Article III. Regardless of whether or not concerns about current legislation produce a realignment, as Richard Re has suggested, it is very likely that we will see significant developments in current legislation in the coming terms of the Supreme Court.