Cases to Watch: October Term

Spokeo v. Robins, No. 13-1339 [Argument: November 2, 2015]

Issue: Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

The issue as stated is not as clear as it could be. In this case, the question boils down to whether lead plaintiff in a Fair Credit Reporting Act class action against the data company Spokeo has standing under Article III.

Spokeo included false information about the plaintiff in its report on him. But, that false information, at least according to Spokeo, was overwhelmingly positive. For example, it reported an inaccurately high income. The plaintiff argues that even false positive information can cause harm. A high income might deter a potential employer who can’t afford that salary.

The company and an army of business-minded amicus briefs argue that Article III does not contemplate mass litigation by mostly uninjured class plaintiffs. If Spokeo wins this broad argument, class actions under many consumer statutes (the TCPA and Wiretap Act, for example) and civil rights laws would be at risk.

Amicus briefs in favor of the plaintiff cite a range of potential negative impacts if the court sides with Spokeo. If Congress can’t confer Article III standing, retirees could lose their right to sue under ERISA, technology companies could lose their ability to invalidate flimsy patents and embolden patent trolls. The real-world harm requirement for standing, if adopted by the court, could affect claims of discrimination in housing or under the ADA. The solicitor general argues that the FCRA is analogous to common law defamation and carries a per se right of action.

In its amicus brief, the Electronic Privacy Information Center wrote:

This is not the time for the Supreme Court to limit the ability of individuals to seek redress for violations of privacy rights set out by Congress. Americans consumers today face an epidemic of privacy harms, including data breaches, identity theft, and financial fraud. Many consumers are unable to obtain jobs or credit because of inaccurate or incomplete information made available by data brokers. These harms arise directly from the failure of companies that profit from the collection and use of the personal information of others to comply with the laws established by Congress to safeguard privacy. The willful violation of these laws threatens the economic and social opportunities of respondent Robins and millions of Americans consumers, whose personal information is collected and used by firms without their knowledge or consent. As Chief Justice Rehnquist warned, “All too often the invasion of privacy itself will go unknown. Only by striking at all aspects of the problem can privacy be adequately protected.” Bartnicki v. Vopper, 532 U.S. 514, 549 (2001) (Rehnquist, C.J., dissenting)


Friedrichs v. California Teachers Association, No. 14-915. (Argument not set yet).

Issues: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

Public sector unions are at risk with this case. I grew up in Ohio, where unions were everywhere. Now I live in North Carolina, where they are comparatively powerless. The difference? Right to work laws. Right to work laws provide (in a vastly simplified version) that workers cannot be made to join a union. Thus, the free-rider problem: workers benefit without joining. This ultimately leads to a lack of funding for the union, and a diminution of its power.

This case may effectively impose a right to work law on public sector unions in every state.

The court has to decide whether forcing public sector workers who benefit from union collective bargaining to pay a fair share of the costs of that bargaining violates their First Amendment rights.

Here, a California law allows school districts to require teachers to join the union or opt out but still pay union dues. In Abood, the court upheld the requirement that non-union workers pay a portion of the union fees because of the “agency shop” bargaining, and the potential free-rider issue. The First Amendment argument suggest this violates the workers’ freedom of association (or non-association) and freedom of speech rights (money is speech, right?).

If the court overturns Abood, it will be a significant blow to public sector unions across the country.


Evenwel v. Abbott, No. 14-940. (Argument not set yet).

Issue: Whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.

In this case, the Court will decide how population should be measured when drawing voter districts. This could have huge implications for gerrymandering district drawing legislatures.

In this case, the plaintiffs claim their votes for state Senate count less than individual votes in larger districts because the state drew the districts based on total population rather than voting population.

Two constitutional doctrines are at issue: “one person, one vote” and the Fourteenth Amendment allocation of U.S. House seats.

“One person, one vote” requires states draw legislative districts that have equal populations. The Fourteenth Amendment requires that Representatives are “apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Key is the phrase “whole number of persons,” which requires non-citizens to be counted.

Thus, states with large non-citizen populations receive additional representation in the House of Representatives.

If the plaintiffs win, their state of Texas will continue to get extra seats in Congress for its large non-citizen population (because the Fourteenth Amendment will still require it), but the lines for those districts will be drawn based only on the voting population (excluding the non-citizens). Thus, the (largely white) citizen population of Texas will control a disproportionate number of House seats – or so the argument goes.