Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancien regime.” Thus, the Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the legislative branch. Federal judges, we are told, should not be in the business of creating private rights of action. It is for Congress, not courts, to “weigh and appraise” the costs of imposing “new substantive legal liability,” and “the proper role of the judiciary” is to “apply, not amend, the work of the People’s representatives.”
At the same time—and without apparent irony—a seemingly different approach to the work of Congress has surfaced in the standing context. With comparable zeal, the Court has invoked the injury-in-fact requirement as a mechanism for curtailing congressional efforts to create actionable private rights. The Court has largely constrained Congress to the creation of rights that are analogous to rights that existed at common law and has charged federal judges with determining independently when violations of statutory rights are close enough to common law harms to be actionable. A plaintiff brandishing a statutory right must run the gauntlet to satisfy federal judges that its violation gives rise to harm that sufficiently resembles a common law harm and either has happened already, is “certainly impending,” or, at a minimum, is “credibly threat[ened].” Even if a plaintiff can satisfy the heightened imminence requirement by demonstrating a credible risk of harm, the Court has limited the plaintiff facing imminent-though-not-yet-materialized injury to prospective relief. As this Article demonstrates, the Roberts Court’s robust approach to the injury-in-fact requirement embeds federal judges in the scrutiny of legislative ends and means. In finding harm, moreover, federal courts are circumscribing when and how the legislature may respond to problems. This approach prefers reactive solutions to preemptive strikes and dramatically shrinks the pool of eligible plaintiffs. And yet, these are the same policy choices recent implied right-of-action cases have told us are suited to the legislative branch, not the judicial branch.
Confusion here is forgivable. The Court justifies each of these moves—disdaining a role for itself in the creation of rights of action while at the same time carving out a significant role for itself in policing express statutory rights—in the name of separation of powers. Separation of powers compels the Court to eschew “freewheeling judicial policymaking” and to respect its own “place.” Yet, Article III standing, “built on a single basic idea—the idea of separation of powers,” limits federal courts to the adjudication of harms that they alone are empowered to recognize. The Court frequently waves the separation of powers banner in service of very different objectives. In the context of private rights of action, the Roberts Court has invoked separation of powers both to constrain and to embolden the federal courts.
This superficial tension, however, masks a common thread. Sixteen years ago, Professor Andrew Siegel documented the various ways in which the Rehnquist Court, in seemingly unrelated lines of cases, manifested a hostility to litigation. At that time, Siegel resisted the impulse to ground this hostility in antipathy to “tort plaintiffs, employment discrimination complainants, trial lawyers, or any of the other favorite targets of modern right-wing politics.” This Article examines the work product of a different Court and casts a more jaundiced eye—finding a through line in the Roberts Court’s allegiance to the executive branch, and in particular, to the “unitary executive”; its antipathy to the damage-seeking civil plaintiff; and its increased aversion to big, proactive legislative solutions to modern problems. Federal courts cannot create causes of action for private plaintiffs. Congress, it appears, can only create causes of action for private plaintiffs in federal court in a narrow set of circumstances, patrolled closely by federal courts. The common theme is that the Court is throwing down obstacles to certain kinds of legal claims, particularly those that enlist private plaintiffs in regulatory enforcement, impose costs on business, and interfere with the free market. The Roberts Court is achieving, through purportedly neutral rules, litigation reform that found little success in the political branches.
