What happened to judicial modesty? Justice Clarence Thomas wants to know – Akron Beacon Journal

Michael Douglas| Retired Opinion Page Editor

What could bring more summer fun, judicially speaking, than Clarence Thomas, arch conservative justice of the Supreme Court, joining with three liberal colleagues in a stinging dissent?

The moment arrived last month, as the court neared the end of its term, Thomas writing for the four, taking his usual allies to task for their sloppy overreach in a case involving a class action, credit reports and the separation of powers. This case did not attract big headlines. The Thomas dissent did get at something problematic with the courts conservative majority.

Sergio Ramirez set out to buy a car. He went to the dealership, agreed to a price and waited for the credit check. The salesman returned to say the deal was off. Ramirez learned his name matched one on a federal government watch list of terrorists, drug traffickers and other criminals.

The dealership used TransUnion to conduct its credit checks. Ramirez sued the credit reporting company, arguing it violated the federal Fair Credit Reporting Act. It turned out he was one of many such victims of mistaken identity. So, he filed a class action, eventually representing more than 8,000 consumers.

More: Congress considers credit-reporting overhaul, including putting government in charge of scores

The class prevailed at trial, a jury awarding in excess of $60 million, including punitive damages. TransUnion appealed. A federal appeals court trimmed the award yet firmly sided with Ramirez, citing the companys reckless handling of the information.

Which leads to the Supreme Court. Writing for the 5-4 majority, Justice Brett Kavanaugh viewed things differently. He drew a line, separating members of the class, between those like Ramirez who saw the misinformation shared with a third party and those who did not face such exposure.

Kavanaugh concluded that the former, roughly 1,850 consumers, suffered real, or concrete, harm. He added that the rest, around 6,300, were not injured, the unshared credit reports no more than if someone wrote a defamatory letter and then stored it in her desk drawer.

No concrete harm, no standing, he summed up.

By standing, Kavanaugh means the ability of an individual to file a lawsuit in federal court. To gain entry, a person must show an injury in fact. In short, he held that the 6,300 had no cause to sue.

Sound reasonable? After all, that credit report wrongly marking you as a terrorist remained tucked away, right?

Justice Thomas hardly holds back in his astonishment, noting how his colleagues have upset decades of court precedent. He describes their approach as remarkable in both its novelty and effects.

As his dissent makes clear, this isnt what Congress intended in crafting the Fair Credit Reporting Act. Lawmakers, along with the president, required credit reporting companies to follow procedures to ensure maximum possible accuracy, to send, when a consumer requests, the complete credit report and to inform consumers of their legal rights and how to dispute the misinformation.

Thomas highlights how TransUnion fell short on these measures in violation of the law. He notes that before Ramirez, the company faced trial on similar grounds. It lost and then didnt bother to make improvements.

Most important, Congress established a legal right for consumers to take such poor performers to court. This goes to the core of the congressional job. Lawmakers understood the true risk of injury to consumers in flawed information surfacing in a credit report, whether it landed with a third party or not.

Thomas stresses: But even setting aside everything already mentioned the Constitutions text, history, precedent, financial harm, libel, the risk of publication and actual disclosure to a third party one need only tap common sense to know that receiving a letter identifying you as a potential drug trafficker or terrorist is harmful.

He adds that is especially so when the subject is a credit report, the entire purpose of which is to demonstrate that a person can be trusted.

So, much is at stake for consumers, just as Congress conceived, and now the court majority has substituted its judgment for that of elected representatives. It has invited judges to challenge lawmakers about what harm is concrete, tipping the balance of power toward the judiciary.

This isnt just about an absence of common sense or failing to grasp the significance of credit reports. The Thomas dissent rings: What happened to judicial modesty? Now doubts gather around other laws in which Congress has established a right for sue, not to mention the narrowing of class actions going forward.

Of course, Justice Thomas hasnt always been so restrained. On the final day of the courts term, he joined in the ruling weakening the Voting Rights Act, the second time a conservative majority has eroded a key provision of the landmark legislation. It has done so though Congress renewed the law in 2006 with overwhelming bipartisan majorities. That, too, is judicial arrogance.

Douglas is a retired Beacon Journal editorial page editor. He can be reached at mddouglasmm@gmail.com.

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What happened to judicial modesty? Justice Clarence Thomas wants to know - Akron Beacon Journal