In November, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, one of the Term’s most talked-about cases. The case presents a relatively unsympathetic plaintiff, Thomas Robins, and the prospect of sizeable class action damages. That combination may explain why one particular narrative has become popular in both mainstream media and legal-industry press that Spokeo is a “no-injury” class action, where “no one was harmed,” but significant liability looms nonetheless. Under this account of the case, the Supreme Court is set to rule on the question of whether it should “grant[] standing to plaintiffs who have not suffered an injury-in-fact.” Such a question is, of course, conclusory—Article III, as the Court has interpreted it, requires that a plaintiff be injured in order to have standing. But the Supreme Court is not in the business of simple error correction, and Spokeo would not have garnered so much attention—including over thirty amicus briefs—if it presented only a question that was easily resolved by preexisting standing doctrine. [...]

The Supreme Court recently surprised many observers by upholding disparate impact claims under the Fair Housing Act (FHA) in a case called Inclusive Communities Project. Justice Kennedy’s majority opinion ratcheted down the hostility to disparate impact analysis recently on display in his Ricci v. DeStefano opinion and in other earlier opinions he had joined. Nonetheless, Inclusive Communities Project’s ferocious dissents joined by four Justices made clear that the battle over disparate impact is hardly abating. [...]

Among the most prominent examples of government speech is a state’s choice to fly—or not to fly—the Confederate flag above or adjacent to its capitol. The recent vigorous public debates in South Carolina and elsewhere across the country reveal the potential power of governments’ expressive choices, including their power to inform, celebrate, cajole, wound, and disparage. Indeed, any government’s expressive choices expose a great deal about its values, principles, and priorities—which in turn generate important public conversations. For these reasons, the Supreme Court has held that political accountability (rather than the Free Speech Clause) remains our recourse when the government makes expressive choices with which we disagree: “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.” [...]

In both Bond v. United States and Yates v. United States, the Supreme Court reversed federal criminal convictions. Neither defendant’s conduct was constitutionally protected; there were no procedural irregularities in either trial, no vagueness or overbreadth issues, and no police misconduct. Instead, each case involved prosecuting a small-time individual with a big-time statute: In Bond, the federal government used the Chemical Weapons Convention Implementation Act of 1998 against a “jilted wife.” In Yates, it unleashed the Sarbanes-Oxley Act of 2002 on a mischievous fisherman. Both proceedings raised concerns about overcriminalization that implicitly drove the Court’s analysis in a new direction. [...]