Jennifer Dickey
Vice President and Deputy Chief Counsel, U.S. Chamber Litigation Center
What’s all this talk about public and private rights?
Once relegated to a small portion of Federal Courts textbooks, Justice Thomas has recently led a revival of discussion of the public/private rights distinction. His views, though often ignored by advocates as idiosyncratic, may prove critical for businesses seeking to build a majority at the Supreme Court, particularly in the area of Article III standing. And with a significant number of Thomas clerks now on the federal courts, those views may also be relevant and important in other courts.
Perhaps most fundamentally, Justice Thomas believes that the adjudication of core private rights disputes lies within the Article III judicial power. Numerous consequences flow from that fact:
First, core private rights may not be taken away by Congress or the Executive Branch without involvement of a court, except pursuant to longstanding historical exceptions, as in the case of territorial and military courts. Wellness Intern. Network, Ltd. v. Sharif, 575 U.S. 665, 71719 (2015) (Thomas, J., dissenting); Ortiz v. United States, 138 S. Ct. 2165, 2185-2187 (2018) (Thomas, J., concurring).
Third, plaintiffs with injuries to private rights have an easier time establishing Article III standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1551 (2016) (Thomas, J., concurring). By contrast, plaintiffs who seek to vindicate only public rights or the private rights of others will have a difficult time satisfying Article III’s standing requirements. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020) (Thomas, J., dissenting).
Given the many legal consequences that flow from the public/private rights distinction for Justice Thomas, it is perhaps useful to study the distinction more fulsomely. According to Justice Thomas, “[h]istorically, ‘public rights’ were understood as ‘rights belonging to the people at large, as distinguished from ‘the private unalienable rights of each individual.’” Wellness, 575 U.S. at 713.
“In the tradition of John Locke, William Blackstone in his Commentaries identified the private rights to life, liberty, and property as the three ‘absolute’ rights—so called because they ‘appertain[ed] and belong[ed] to particular men … merely as individuals,’ not ; ‘to them as members of society [or] standing in various relations to each other’—that is, not dependent upon the will of the government.” Wellness, 575 U.S. at 713 (citing 1 W. Blackstone, Commentaries on the Laws of England 119 (1765). In general, private rights are thus viewed as including property rights, contract rights, and common law torts. See Wellness, 575 U.S. at 718; Stern v. Marshall, 564 U.S. 462, 484 (2011); Caleb Nelson, 107 Colum. L. Rev. 559, 571, 591 (2007) (cited in numerous Thomas opinions).
“Public rights”—those that are dependent upon the will of the government—can be broken down into two categories: “‘public rights belonging to the public at large,’ and ‘privileges’ or ‘franchises,’ which public authorities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 344 n.2 (2015) (Thomas, J., dissenting). Usually lumped into the category of “public rights belonging to the public at large” include rights we’re all familiar with, like driving on public roads and sailing on public waters, as well as compliance with the laws generally. Spokeo, Inc. v. Robins, 126 S. Ct. 1540, 1551 (2016) (Thomas, J., concurring). Examples of “privileges” or “franchises” might include patents, registered trademarks, the right to bring and participate in qui tam suits, tax exemptions, licenses, and other benefits not conveying contractual rights or vested interests in property on individuals. See Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1373 (2018); B&B Hardware, 575 U.S. at 172; Nelson, 107 Colum. L. Rev. at 571.
“Privileges” or “franchises” bear similarities to private rights, in that they may be bestowed on individuals, but they “depend upon express legislation” and “hath [their] essence by positive municipal law.” Teva, 574 U.S. at 344 n.2. Thus, Justice Thomas has warned, “no matter how closely a franchise resembles some ‘core’ private right, it does not follow that it must be subject to the same rules of judicial interpretation as its counterpart.” Id.
That warning, issued in 2015, proved prescient: A critical question lurking in several recent cases at the Supreme Court has been whether statutory provisions created rights that are enforceable in the federal courts without other evidence of injury. See, e.g., Spokeo. For Justice Thomas, the status of the “right” created—whether it be private or public—may be critical to the analysis. That is because, as noted above, it is much easier, in Justice Thomas’s view, to establish Article III standing to challenge a violation of a private right. An individual suing to challenge a violation of a public right, by contrast, will need to show that he “has suffered a concrete harm particular to him,” distinct from that of the general population. Id. at 1553 (Thomas, J. concurring).
How does Justice Thomas determine whether Congress has created a private right? The short answer is that it is unclear, and there may be room to persuade Justice Thomas on this question going forward.
Justice Thomas has most often suggested a historical test: Does the statutory right create an individual right that would have been recognized as a private right (contract rights, property rights, torts) at the common law? In Wellness, for example, he recognized that Stern claims—that is “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789,” Stern, 564 U.S. at 484, “indisputably involve private rights,” Wellness, 575 U.S. at 718 (Thomas, J., dissenting). He followed that same approach in Oil States, relying on historical understandings to conclude that patents are public franchises, not private rights, despite the undisputedly individual nature of patents conferred. 138 S. Ct. at 1373‑74. And in Thole v. U.S. Bank N.A., Justice Thomas rejected the idea that petitioners could claim private rights under ERISA, noting that “its statutory definition of a fiduciary departs from the common law.” 140 S. Ct. 1615, 1623 (2020) (Thomas, J., concurring).
But in other cases, Justice Thomas appears to have strayed from that historical approach, or at a minimum has not fully explained his thinking. In Spokeo, Justice Thomas thought that a statutory provision requiring a company to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates” “could arguably establish a private cause of action to vindicate a privately held right.” 136 U.S. at 1554. He did not analogize the provision to any common law private right, nor offer any explanation for this conclusion except that the requirement appeared focused on the individual. See id. But he left open the possibility that the right at issue was merely a public right masquerading as a private right. See id. Similarly, in Frank v. Gaos, Justice Thomas concluded that the Stored Communications Act created a private right when it prohibited certain electronic service providers from “knowingly divulg[ing] . . . the contents of a communication sent by a user, subscriber, or customer of the service, except as provided in the Act.” 139 S. Ct. 1041, 1047 (2019) (Thomas, J., dissenting). Again, he offered no historical analysis as to why this right would have been viewed as a private right at common law, rather than a public right that the government would be free to do away with via legislation in the future.
It seems clear from Justice Thomas’s other writings that the mere fact that a statutory right appears to create regulatory duties to individuals is not sufficient to create a private right. If it were, many government benefits programs—Social Security, disability, etc.—would suddenly be viewed as creating private rights. Yet all have been traditionally understood as privileges—that is, rights“dependent upon the will of the government,” Wellness,575 U.S. at 713, and subject to modification by Congress.
Perhaps Justice Thomas believed that the particular provisions at issue in Spokeo and Frank bore similarity to tort duties owed to individuals at the common law, or that the provision in Frank was more a function of the underlying contract between the individual user and the stored communications service.
Or perhaps he simply made a mistake. Justice Thomas has not been shy to admit when he later viewed an earlier opinion as in error. See, e.g., Baldwin v. United States, 140 S. Ct. 690 (2020) (“Although I authored Brand X, it is never too late to surrender former views to a better considered position.”).
Trans Union, presently before the Supreme Court, provides an opportunity for Justice Thomas to clarify his test for public/private rights in the context of Article III standing. One issue in the case concerns the standing of absent class members to challenge stand-alone violations of three regulatory duties: (1) a requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy” when “prepar[ing] a consumer report,” 15 U.S.C. § 1681e(b); (2) a requirement that a “consumer reporting agency shall, upon request, … clearly and accurately disclose to the consumer … [a]ll information in the consumer’s file,” § 1681g(a)(1); and (3) a requirement that a “consumer reporting agency shall provide to a consumer, with each written disclosure … to the consumer” a “summary of rights” prepared by the Consumer Financial Protection Bureau, § 1681g(c)(2). These regulatory duties exist only by virtue of positive law, and although they are owed to individuals, they are owed to all individuals as members of the public. It seems a stretch to suggest that any of the regulatory duties described above is akin to a tort that existed at common law. The most obvious fit would be defamation, but these duties appear to go far beyond what the common law tort of defamation would cover.
The case thus tees up several questions for Justice Thomas: Do these requirements create private rights that can only be disposed of by Article III courts, not modified or abrogated by Congress in the future? Are they in fact analogous to the core private rights recognized at the common law? Or is that historical foundation not a limiting feature on what is conceived as a private right today?
It will be interesting to see what value a page of history will be worth to Justice Thomas in this area.
Jennifer B. Dickey is vice president and deputy chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. Dickey handles a variety of litigation matters for the Chamber.
