By Gordon Hull
Last time, I started to look at the details of the Supreme Court’s recent TransUnion decision, which ruled that a credit agency that wrongly labeled someone as a match for a terrorist watch list (using only first and last names, with no effort at verification. Sorry “John Smith”…) could only be sued if that person could show that the credit agency also distributed this information to others. So basically you have to lose a job opportunity or a mortgage approval, and then you can sue. There is nothing you can do to pre-emptively force them to correct the problem. Worse, this ruling is in defiance of explicit statutory language in the FCRA. The opinion directly says that SCOTUS can override Congressional determination of when something is legally actionable, and (just to be contrary, I guess), it does so in the name of separation of powers.
So what are we to make of this? As the various critical theories will remind you, law is a form of power. One thing that’s happening here is the protection of the powerful from the weak. With some high profile exceptions (like Justice Gorsuch’s endorsement of LGBTQ rights), the Roberts court has fairly consistently sided with the powerful, like corrupt politicians and conservative dark money donors by whittling away at laws designed to rein them in. One limitation to that thesis is to argue, as Erwin Chemerinsky has, that “Throughout history the court has overwhelmingly favored corporate power over employees, consumers, and the public, and has favored government power over individuals’ rights.” While it’s tempting to leave it at that here, I think there’s more nuance to be had. So two points.
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