September 8, 2015

New York Times op-ed wrong on PLF cases

By Wen Fa Attorney

Though much of constitutional discourse today focuses on liberties enshrined in the Bill of Rights, the real genius of the Constitution lies in its use of structural devices. One such device is the doctrine of standing, embedded in Article III, which permits federal courts only to hear cases as brought by plaintiffs who have suffered actual harms that can be remedied by a court decision.

In a New York Times op-ed last week, Supreme Court journalist Linda Greenhouse lamented the likely result of two PLF cases pending before the Court. In Fisher v. University of Texas at Austin (the second case with the same name), PLF argues that plaintiff, a spurned white applicant, has standing to sue the University of Texas, which had given explicit racial preferences to underrepresented minorities. In Spokeo v. Robins, PLF argues that Article III injury can’t just be created by congressional fiat, and a plaintiff who sued a website for listing him as wealthier and better educated has no standing to bring his case in federal court. The Court seems poised to adopt our argument, and Greenhouse implies that this means Article III standing analysis changes depending on whose ox gets gored. She’s wrong.

For one, the University of Texas has subjected Abigail Fisher to the type of stigma that is simply not felt by someone like Thomas Robins. By openly discriminating against Fisher in the name of diversity, the University is sending the message that whites categorically contribute less to classroom discussion. Group-centric thinking of that sort has been soundly rejected by the Court. All Robins has to complain about, by contrast, is that a person who happens to stumble upon his Spokeo page may think that he has more money and more degrees than he does in reality. But those are desirable traits.

More fundamentally, the Court has recognized precisely the harm Fisher complains of (racial preferences in education) as a cognizable injury under Article III. But the Court has never held that appearing to be wealthier or better educated allows a plaintiff to sue in federal court, which is why Robins bases his injury on congressional say-so. Yet Congress can’t command courts to issue advisory opinions any more than members of the Court can direct the Senate to confirm their friends.

The role of federal courts in the constitutional structure is both limited and significant. In some cases, the judiciary should abstain from disputes better suited for other branches of government. In other cases, it is emphatically the province and duty of the judiciary to say what the law is. PLF will continue to pride itself on being able to tell the difference.

 

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