There was a curious moment during Tuesday’s oral argument at the US supreme court. The justices were considering Spokeo, Inc v Robins, a case about whether a man named Thomas Robins could sue a company that put erroneous information online in violation of the federal Fair Credit Reporting Act.
At one point, Chief Justice John Roberts posed an odd hypothetical scenario that seemed, at first, a left-field tangent, to Deputy Solicitor General Malcolm Stewart as he argued in favor of Robins’s right to sue:
Mr Stewart, let’s kind of say your Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, ‘anyone in a border state – so it’s particularized – who is unemployed may bring an action against an illegal immigrant who has a job.’ And they get damages, maybe they get an injunction. Can Congress do that?
At first glance, you might think that the chief justice has joined in the anti-immigrant hysteria that has helped propel Donald Trump to the top of the Republican primary polls. Fellow justice Antonin Scalia used a case about an Arizona immigration law to rant like a second-string wingnut talkshow host about the scourge of illegal immigration in 2012 – is Roberts a convert to Scalia’s position?
Maybe, but anti-immigration rhetoric is just a means to an end in this case. His question actually reflects his consistent hostility to many citizens getting a fair day in court.
This case involves the legal concept of “standing”. In order to bring a suit in federal court, someone has to show that they have suffered some concrete injury under the law. When challenging school segregation in the 1950s, for example, the NAACP couldn’t just file a lawsuit arguing that such laws violate the 14th amendment. They had to find a plaintiff in a particular school district who was harmed by the policy and wanted to sue.
In this case, there is a question about whether Robins has standing to bring the case – whether he was actually harmed by the publishing of false information online. While Robins argues that he did suffer a concrete harm from the published misinformation, he also argues that the violation of the law is, in itself, a sufficient injury to allow a lawsuit to proceed.
Roberts’s hypothetical, then, was not advocating a terrible immigration policy. Rather, he was tweaking the government with a reductio ad absurdum. If we allow Robins to sue, Congress could pass all kinds of crazy laws liberals wouldn’t like! As with most slippery slope constitutional arguments, this isn’t very convincing – virtually any power given to Congress can be theoretically used to pass unwise laws, but this doesn’t mean that the powers cease to exist. If Congress has the authority to expand standing to allow people to sue if laws are violated, it doesn’t vanish because it can do so for ends some people consider undesirable.
But it’s nonetheless revealing of Roberts’s underlying agenda. Like many conservative judges, Roberts has sought to make it more difficult for people to get the standing to sue in federal court. In 2007, for example, Roberts joined an opinion that held that taxpayers did not have the standing to challenge expenditures by the executive branch that go to religious institutions.
Conservative justices on the supreme court have also narrowed standing in environmental cases. In a 1992 opinion written by Justice Scalia, the court denied standing to citizens bringing a lawsuit based on the Endangered Species Act. Vigilant citizens were denied the ability to compel enforcement of the statute in the face of executive inaction.
The conservative war on standing is part of a broader campaign to make it more difficult for groups like consumers and employees to get a fair hearing in federal court. In addition to narrowing standing, conservatives have made it more difficult to bring class action suits and twisted federal law to prevent citizens from challenging mandatory arbitration agreements required by monopolies.
There is more at stake in this case, therefore, than whether Robins can pursue his case. The court might make it more difficult for a wide range of civil rights and consumer lawsuits to proceed. And the chief justice’s silly hypothetical aside, it won’t be marginalized groups like undocumented immigrants who will benefit if the court continues to put up barriers to the courthouse door.
• This article was amended on 5 November 2015. An earlier version said “Engendered Species Act” where “Endangered Species Act” was meant.
