In my view Justice Thomas remains the most interesting and provocative Justice. Here are three points from his recent opinions.
First, concurring in Americans for Prosperity Foundation v. Bonta, the compelled disclosure of donors case, Thomas rests his conclusion on the First Amendment right of assembly:
The text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously. See 4 Annals of Cong. 900–902, 941–942 (1795) (defending the Democratic-Republican societies, many of which met in secret, as exercising individuals’ “leave to assemble”); see also Brief for Becket Fund for Religious Liberty as Amicus Curiae 13–20; Reply Brief in No. 19–251, pp. 3–5; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958) (discussing the history of anonymous publications). And the right to associate anonymously often operates as a vehicle to protect other First Amendment rights, such as the freedom of the press. McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 361–367 (1995) (THOMAS, J., concurring) (“Founding-era Americans” understood the freedom of the press to include the right of printers and publishers not to be compelled to disclose the authors of anonymous works).
Well, maybe. The generally weak citations and the use of the word "suggest" are not encouraging. But the right of assembly is understudied and underdeveloped, and it is more promising from an originalist perspective than whatever the majority thought it was relying on. (See here for criticism from Josh Blackman).
Second, also from Americans for Prosperity:
… [T]he Court holds the law “overbroad” and, thus, invalid in all circumstances. Ante, at 16. But I continue to have “doubts about [the] origins and application” of our “overbreadth doctrine.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op., at 1). That doctrine purports to grant federal courts the power to invalidate a law “if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Ibid. (internal quotation marks omitted). However, the Court has no power to enjoin the lawful application of a statute just because that statute might be unlawful as-applied in other circumstances. Id., at ___ (slip op., at 9); Borden v. United States, 593 U. S. ___, ___ (2021) (THOMAS, J., concurring) (slip op., at 4) (“a court cannot, consistent with separation of powers, enjoin enforcement of a statute where enforcement would be lawful”). And the principle that application of a law is always unlawful if “‘a substantial number of its applications are unconstitutional’” “lacks any basis in the Constitution’s text” and “contravenes traditional standing principles.” Sineneng-Smith, 590 U. S., at ___ (THOMAS, J., concurring) (slip op., at 1).
… [R]elatedly, this Court also lacks the power “to ‘pronounce that the statute is unconstitutional in all applications,’” even if the Court suspects that the law will likely be unconstitutional in every future application as opposed to just a substantial number of its applications. Borden, 593 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (quoting Chicago v. Morales, 527 U. S 41, 77 (1999) (Scalia, J., dissenting)). A declaration that the law is “facially” unconstitutional “seems to me no more than an advisory opinion—which a federal court should never issue at all.” 593 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3). Courts cannot “strike down statutory text” or resolve the legal rights of litigants not before them. Ibid.
Agreed. The whole idea of "facial challenges" and "striking down statutes" is (at the very least) in substantial tension with the understanding of judicial review expressed in Federalist 78 and in Marbury v. Madison. A court declines to apply a statute, in a case before it, if the Constitution as superior law overrides the application of the statute in that case. That's all. The implications for other applications of the statute may or may not be apparent from the case's outcome, but they remain implications until actually presented and decided in a future case. (Aside: if anyone is actually looking for a way to limit the power of the Supreme Court as a general matter, supporting this conception of judicial review would be something to consider.)
Third, dissenting in TransUnion LLC v. Ramirez (Article III standing under the Fair Credit Reporting Act), Thomas disputes the injury-in-fact requirement for standing in some types of cases:
Key to the scope of the judicial power, then, is whether an individual asserts his or her own rights. At the time of the founding, whether a court possessed judicial power over an action with no showing of actual damages depended on whether the plaintiff sought to enforce a right held privately by an individual or a duty owed broadly to the community. See Spokeo, Inc. v. Robins, 578 U. S. 330, 344–346 (2016) (THOMAS, J., concurring); see also Thole v. U. S. Bank N. A., 590 U. S. ___, ___–___ (2020) (same) (slip op., at 1–2); 3 W. Blackstone, Commentaries on the Laws of England 2 (J. Chitty ed. 1826); 4 id., at 5. Where an individual sought to sue someone for a violation of his private rights, such as trespass on his land, the plaintiff needed only to allege the violation. See Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (K. B. 1765). Courts typically did not require any showing of actual damage. See Uzuegbunam v. Preczewski, 592 U. S. ___, ___–___ (2021) (slip op., at 5–6). But where an individual sued based on the violation of a duty owed broadly to the whole community, such as the overgrazing of public lands, courts required “not only injuria [legal injury] but also damnum [damage].” Spokeo, 578 U. S., at 346 (THOMAS, J., concurring) (citing Robert Marys’s Case, 9 Co. Rep. 111b, 112b, 77 Eng. Rep. 895, 898–899 (K. B. 1613); brackets in original).
This distinction mattered not only for traditional common-law rights, but also for newly created statutory ones. The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder “could not show monetary loss.” Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 972 (CA11 2020) (Jordan, J., dissenting) (citing Act of May 31, 1790, §2, 1 Stat. 124–125). In the patent context, a defendant challenged an infringement suit brought under a similar law. Along the lines of what TransUnion argues here, the infringer contended that “the making of a machine cannot be an offence, because no action lies, except for actual damage, and there can be no actual damages, or even a rule for damages, for an infringement by making a machine.” Whittemore v. Cutter, 29 F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding circuit, Justice Story rejected that theory, noting that the plaintiff could sue in federal court merely by alleging a violation of a private right: “[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to the party” because “[e]very violation of a right imports some damage.” Ibid.; cf. Gayler v. Wilder, 10 How. 477, 494 (1851) (patent rights “did not exist at common law”).
I'm back to "well, maybe" here, but it's worth considering. While I'm confident that standing as a general matter arises from Article III's vesting of the "judicial Power" over cases and controversies, the contours of that doctrine in modern cases seem only loosely tied to originalist sources. Simply invoking the injury-in-fact requirement ("No concrete harm, no standing," as the majority says) isn't enough. That was Justice Scalia's view in Lujan v. Defenders of Wildlife, the foundational modern standing case, but that case involved what Justice Thomas calls "a duty owed broadly to the community."
In any event, these points all seem important to think about.
Posted at 6:08 AM