TransUnion, one of the nation’s largest credit reporting companies, employed shoddy procedures that mislabeled thousands of people as terrorists or national security threats in reports that were readily available to their creditors and potential employers. TransUnion then sent confusing and incomplete mailings about its designations when those individuals requested their credit reports. One victim of this practice, Sergio Ramirez, sued TransUnion on behalf of a class of similarly affected individuals, and a jury found that TransUnion willfully violated multiple consumer protections of the Fair Credit Reporting Act (FCRA). Seeking to overturn the jury’s damages award, TransUnion argued that many of the plaintiffs did not suffer any “concrete” injury that gives them standing to sue under Article III of the U.S. Constitution.

Ruling against TransUnion, the U.S. Court of Appeals for the Ninth Circuit explained that Congress passed the FCRA to prevent the harms that result from flawed credit reporting, in part by providing consumers with the means to dispute inaccurate information. The court then concluded that TransUnion created a material risk of harm to those interests through its violations of the FCRA, inflicting a concrete injury on the plaintiffs. The Supreme Court later agreed to review this decision.

CAC filed an amicus curiae brief urging the Court to affirm the judgment in favor of the plaintiffs. Our brief made two key points. First, while TransUnion claims that many of the plaintiffs suffered no “concrete” injury from its mislabeling of them as terrorists or from the confusing mailings it sent them, TransUnion provided no standard for determining what would constitute a “concrete” injury. By dismissing Congress’s decision to vest consumers with certain legal rights in the FCRA, and by asking the Court to engage in a standardless evaluation of “real world” harm, TransUnion’s position aimed to expand the power of the judiciary at the expense of the elected branches, restricting Congress’s authority to define new legal rights and remedies.

Second, our brief argued that it is well within Congress’s power to establish new legal rights that protect Americans from being put at risk of harms that Congress wishes to avert. Article III of the Constitution, from which the requirement of standing derives, was not originally understood to require any specific type of “real world” damage in order to invoke the power of the federal courts. Instead, by limiting the judiciary to resolving “cases” and “controversies,” Article III required only the deprivation of a legal right. It did not require any additional harm beyond the deprivation of that right. As our brief described, early American legal precedents reflect the principle that every violation of a legal right warrants a remedy, and the Supreme Court has long recognized Congress’s power to create new legal rights through legislation—including legislation that protects individuals from being put in danger of harm. Because TransUnion’s violations of the law caused a material risk of harm to the very interests that Congress sought to protect in the FCRA, our brief explained that the plaintiffs had standing to seek redress for those violations in the courts.

In June 2021, in a 5-4 decision that ignored important constitutional history, the Court held that the plaintiffs did not suffer injuries sufficiently “concrete” to give them standing in federal court. The ruling broadens the power of the judiciary to determine which types of injuries are actionable in court and limits the role Congress may play in creating legally redressable rights. As Justice Thomas wrote in dissent, echoing our brief: “The principle that the violation of an individual right gives rise to an actionable harm was widespread at the founding, in early American history, and in many modern Cases.” In discarding that history, Thomas continued, the Court has deprived Congress “of its power to create and define rights.” As Justice Kagan wrote in her own dissent, also echoing our brief: “The Court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.”