What's Originalism After TransUnion?: Picking an Originalist Approach that Gets Standing Back on Track

Abstract

The law of standing has “jumped the tracks” from the Constitution’s original meaning. At least, a growing chorus of originalists say so. Justice Thomas, as well as Judge Kevin Newsom of the Eleventh Circuit Court of Appeals, are leading the way to get the doctrine back on track. Justice Thomas’s 2021 dissent in TransUnion LLC v. Ramirez, as well as Judge Newsom’s 56-page concurrence in Sierra v. City of Hallandale Beach, each display an originalist approach to standing—but do they agree? Judge Newsom’s approach largely mirrors Justice Thomas’s, but it differs in subtle ways, including that he would ground statutory grants of standing in Article II rather than in Article III, as Justice Thomas does. The two judges agree that, especially when Congress elevates a harm, constitutional “concrete injury” does not always require injury in fact.

This Note explores the differences between the two originalist attempts to realign the law of standing with the Constitution’s original meaning. The issue has important implications for the originalist methodology more broadly, as it will aim to elucidate what makes originalists arrive at similar conclusions from different starting points or arrive at different conclusions entirely. Hopefully, the Note will help proponents of originalism understand the law of standing and how to best get standing jurisprudence back on track. And hopefully, the Note will help those unsympathetic to originalism by at least elucidating what these two major originalists are doing. All would do well to understand this debate: any changes that are to come in the law of standing will have significant practical effects.

Keywords: standing, federal courts, originalism, original meaning, originalist, precedent