TransUnion LLC v. Ramirez, decided by the Supreme Court today by a 5–4 margin, has been classed among the term’s leading business cases, and it is certainly that. The high court gratified commercial defendants by ruling that class action lawyers may sue credit reporting service TransUnion only on behalf of customers concretely injured by its actions — in particular, the 1,853 class members who were the subject of misleading credit reports sent to third parties — and not on behalf of a further 6,332 customers whose similarly misleading reports were internally generated but not sent to any third party. Complainants suffering no concrete injury‐​in‐​fact, the majority ruled, lack standing to sue in federal court for damages under the Constitution’s requirement of a “case” or “controversy.” This is so even if Congress had enacted legislation designating the wider class as injured. (Prospective relief in the form of an injunction may still be open to them.)

The case completes a years‐​long arc in which the Court has increasingly moved to restrict what have been called “no‐​injury” suits, often in the class action context. It had spoken less dispositively in the 2016 case Spokeo, Inc. v. Robins, in which Justice Clarence Thomas also wrote separately from the other conservatives. Today, Thomas continued on his own path, writing a dissent joined by the three liberals, while Justice Brett Kavanaugh wrote the majority opinion for the other members of the conservative wing.

While clothed in the garb of a business case, TransUnion v. Ramirez is fundamentally a high‐​level dispute over constitutional law itself, with noteworthy implications for the power structure of the rival branches. In particular, the Court held that Congress is not free under the Constitution to devise whatever rights to sue for damages it might want to come up with. It needs to build on a connection either to the sorts of harms traditionally restricted by law — such as injuries to person, property, and reputation — or to harms specified by the Constitution itself, such as injuries to free speech, free exercise of religion, due process, and equal protection.

Kavanaugh’s majority opinion quotes several recent appellate holdings to this effect, notably one by then‐​Seventh Circuit Judge Amy Coney Barrett, in 2017: “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.” Nor can lawmakers in Congress simply conjure harm into existence by force of will: as Judge Greg Katsas put it in a case last year, “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say‐​so.”

This does not by any means leave Congress unable to shape or devise rights to sue where earlier remedies fall short. As Judge Jeff Sutton noted in a 2018 Sixth Circuit case, “Congress may ‘elevate’ harms that ‘exist’ in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.” Justice Thomas, in dissent, found the history inadequate to support the emergent rule.

Without trying to resolve that debate here, we may note that the consequences aren’t going to be limited to just the law of credit reporting. Across a wide range of legal areas — antitrust, securities, and maybe quite a bit further afield — at least some proposed and existing rights to sue for damages are arguably not grounded in concrete injury in fact. Today’s case stands for a significant limitation on congressional power.

Commentary by Walter Olson. Origininally published at Cato At Liberty. https://www.cato.org/blog/congress-isnt-free-create-rights-sue-without-injury

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