Spokeo Misspeaks

Most commentators have critiqued the Supreme Court’s opinion in Spokeo, Inc. v. Robins for failing to answer the question presented. But in important ways, the Spokeo opinion does not merely fail to speak—it affirmatively misspeaks. This essay suggests that underlying the Justices’ inability to see how standing law ought to apply to the facts in Spokeo is a failure to appreciate the power that consumer reports have over individuals’ life prospects today. Worse, the Justices’ unawareness of their own ignorance leads them to afford Congress little deference in identifying injuries occurring in our new information society.

Their meta-ignorance also induces the Justices to credit their own judgment over the judgment of the market about what consumer information is material to determinations about employment, credit, insurance, and other market transactions. These are strange moves to make in the name of standing, a doctrine founded on a belief in judicial restraint.