The Volokh Conspiracy

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Justice Kavanaugh's Circuit Judge Name-Dropping

There are citations to Circuit Judges Barrett, Sutton, Katsas, and others, plus scholarly writings from Scalia and Roberts


Justice Kavanaugh wrote the majority opinion in TransUnion LLC v. Ramirez. The Court split 5-4. Justice Thomas dissented, and was joined by Justices Breyer, Sotomayor, and Kagan.

Justice Kavanaugh's opinion stood out for its numerous citations to other circuit court judges by name. Usually, the Supreme Court will only name a Circuit Court judge who concurs, or dissents. But here, Kavanaugh name-drops the author of several majority panel opinions.

Two of Circuit Judge Barretts cases are cited:

Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992). If "the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve." Casillas v. Madison Avenue Assocs., Inc., 926 F. 3d 329, 333 (CA7 2019) (Barrett, J.). 

As then-Judge Barrett succinctly summarized, "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." Casillas, 926 F. 3d, at 332.

Those include, for example, reputational harms, disclosure of private information, and intrusion upon seclusion. See, e.g., Meese v. Keene, 481  U. S. 465, 473 (1987) (reputational harms); Davis v. Federal Election Comm'n, 554 U. S. 724, 733 (2008) (disclosure of private information); see also Gadelhak v. AT&T Services, Inc., 950 F. 3d 458, 462 (CA7 2020) (Barrett, J.) (intrusion upon seclusion). 

Judge Sutton gets a shoutout:

But even though "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." Hagy v. Demers & Adams, 882 F. 3d 616, 622 (CA6 2018) (Sutton, J.) (citing Spokeo, 578 U. S., at 341).

As does Judge Katsas, who sat by designation on the Eleventh Circuit:

As Judge Katsas has rightly stated, "we cannot treat an injury as 'concrete' for Article III purposes based only on Congress's say-so." Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 999, n. 2 (CA11 2020) (sitting by designation); see Marbury, 1 Cranch, at 178.

Ditto for Judge Tatel:

As Judge Tatel phrased it in a similar context, "if inaccurate information falls into" a consumer's credit file, "does it make a sound?" Owner-Operator Independent Drivers Assn., Inc. v. United States Dept. of Transp., 879 F. 3d 339, 344 (CADC 2018). Writing the opinion for the D. C. Circuit in Owner-Operator, Judge Tatel answered no. . . .

But as Judge Tatel explained for the D. C. Circuit, libel and slander per se "require evidence of publication." Owner-Operator, 879 F. 3d, at 345 

And Judge Colloton:

Other Courts of Appeals have similarly recognized that, as Judge Colloton summarized, the "retention of information lawfully obtained, without further disclosure, traditionally has not provided the basis for a lawsuit in American courts," meaning that the mere existence of inaccurate information in a database is insufficient to confer Article III standing. Braitberg v. Charter Communications, Inc., 836 F. 3d 925, 930 (CA8 2016); see Gubala v. Time Warner Cable, Inc., 846 F. 3d 909, 912 (CA7 2017).

I don't think I've ever seen a Supreme COurt opinion that name-drops so many circuit court judges who wrote majority opinions.

There is a citation to an Eleventh Circuit panel opinion by Judge Stanley Marcus. But he is not name-dropped:

We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class. See, e.g., Cordoba v. DIRECTV, LLC, 942 F. 3d 1259, 1277 (CA11 2019). 

There are also citations to then-Circuit Judge Scalia:

To demonstrate their personal stake, plaintiffs must be able to sufficiently answer the question: "'What's it to you?'" Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983).

Kavanaugh also cites almost-Circuit Judge Roberts, paired with a Marbury cite. Aren't they dreamy?

Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant and redressable by the court ensures that federal courts decide only "the rights of individuals," Marbury v. Madison, 1 Cranch 137, 170 (1803), and that federal courts exercise "their proper function in a limited and separated government," Roberts, Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1224 (1993). 

We accept the "displacement of the democratically elected branches when necessary to decide an actual case." Roberts, 42 Duke L. J., at 1230. 

Roberts had argued Lujan.

By contrast, Justice Thomas's dissent cites opinions from Judges Sutton and Wood, without name-dropping:

Huff v. TeleCheck Servs., Inc., 923 F. 3d 458, 469 (CA6 2019) ("Article III standing may draw a linebetween private and public rights"); Bryant v. Compass Group USA, Inc., 958 F. 3d, 617, 624 (CA7 2020) (the Spokeo concurrence "drew a useful distinction between two types of injuries").

Thomas does cite Judge Newsom's fascinating concurrence on Article III standing, which warrants a re-read.

That may be a pithy catchphrase, but it is worth pausing to ask why "concrete" injury in fact should be the sole inquiry. After all, it was not until 1970—"180 years after the ratification of Article III"—that this Court even introduced the "injury in fact" (as opposed to injury in law) concept of standing. Sierra v. Hallandale Beach, 996 F. 3d 1110, 1117 (CA11 2021) (Newsom, J., concurring). And the conceptthen was not even about constitutional