The Perfect Plaintiff Problem: How the Roberts Court Made Systemic Harm Unprovable

1. Introduction

When seven year old Linda Brown walked past her neighborhood school to attend a segregated school across town, her experience anchored Brown v. Board of Education (1954) that dismantled an entire system of educational apartheid [1]. When Willie Griggs failed an employment test unrelated to job performance, his individual lawsuit exposed discriminatory hiring practices affecting millions, culminating in Griggs v. Duke Power Co. (1971) [2]. These landmark cases succeeded because courts treated individual plaintiffs as windows into broader patterns of systemic harm. In short, one person's injury revealed a structural problem worth remedying for all.

Impact litigation, which treated individual cases as vehicles for systemic reform, built the modern civil rights state. The Roberts Court, however, has spent the past fifteen years systematically dismantling it. Through three procedural doctrines—standing, class certification, and personal jurisdiction (each explained later in this piece)—the Court has erected barriers that filter out systemic claims before courts ever examine whether discrimination or harm actually occurred. The Court has not explicitly rejected civil rights enforcement; rather, its decisions require structural harm to present itself in ways that contradict its very nature: as localized rather than dispersed, identical rather than varied, and realized rather than probabilistic—thereby ensuring that the very features that make systemic harm widespread and difficult to trace also make it legally invisible. Taken together, the Roberts Court’s increasingly scrutinized procedural requirements consequently creates an impossible standard for proving systemic harm, therefore effectively insulating large-scale discrimination and institutional misconduct from judicial scrutiny.

In Section II, I examine how the Court’s redefinition of who may sue (standing) restricts challenges to practices that create serious risks of harm before those harms fully materialize. In Section III, I analyze how shifts in the rules for group lawsuits (class actions) interpret differences among victims and their individual experiences as evidence against any shared pattern, even when systemic discrimination is well documented. In Section IV, I assess how new limits on where plaintiffs may bring cases (jurisdiction) disperse nationwide harms into dozens of isolated lawsuits, weakening the possibility of meaningful accountability. Together, these developments reveal how the Court has transformed procedural law in ways that make structural injustice increasingly difficult to expose or remedy, which I delineate in Sections V and VI.

2. Standing Filters Out Risk and Probability

The Roberts Court has reshaped the law of standing in ways that block courts from addressing widespread harm before it fully occurs. The doctrine of standing determines who may sue in federal court. Article III of the Constitution limits federal judicial power to actual "cases and controversies," preventing courts from issuing advisory opinions on hypothetical disputes [3]. For decades, courts interpreted this requirement flexibly. If a company's conduct created a cognizable risk of harm, plaintiffs could challenge it without waiting for the worst-case scenario to materialize. Exposure to harmful practices itself constituted sufficient injury.

TransUnion LLC v. Ramirez (2021), however, fundamentally altered this framework [4]. TransUnion, one of the three major credit reporting companies, flagged 8,185 consumers as potential terrorists because its algorithm matched their names to a government watch list. The algorithm was flawed, generating false matches based on name similarity alone. Every plaintiff faced an identical corporate practice: TransUnion maintained inaccurate terrorist designations in their credit files using the same defective screening process

The Court’s key distinction, however, was not the existence of the flawed practice itself, but whether its results were actually shared with third parties. Of the 8,185 affected consumers, TransUnion sent credit reports containing the false terrorist flags to third parties for 1,853 individuals. For the remaining 6,332 people, the erroneous information sat in their files but had not yet been disclosed. The Supreme Court held that only the 1,853 individuals whose reports were actually disseminated had Article III standing—that is, the legal right to sue in federal court because they could show a concrete, real-world injury rather than a potential or speculative one [5]. The other 6,332 plaintiffs, the Court ruled, suffered no cognizable injury merely from having false information in their files. The risk that information might be disclosed (and the probability that disclosure would cause harm) was insufficient [6].

Thus, in TransUnion, the Supreme Court used the constitutional rule of standing, originally meant to decide who can bring a case, into a tool for dismissing large-scale challenges before the underlying misconduct is ever examined. Consider the implications for mass data breaches, for example. When hackers steal personal information for 100 million people, the company's negligent security practices affected everyone identically. Yet under TransUnion, only those who can prove their stolen data was actually misused–demonstrating identity theft or fraudulent charges–have standing. The other 95 million individuals, despite facing elevated risk from the exact same corporate negligence, cannot obtain judicial relief.

Moreover, this new application of standing doctrine creates perverse incentives. The better a company becomes at concealing or delaying the manifestation of harm, the more difficult it becomes to challenge that conduct. As a thought experiment, an environmental contamination case illustrates this paradox. A factory pollutes the local water supply with carcinogens. Under TransUnion's logic, residents lack standing until they personally develop cancer, even though they are all drinking contaminated water and face significantly elevated cancer risk. The harmful conduct is identical for all, but only those who develop the disease can sue. By the time harm becomes concrete enough to satisfy Article III, the most effective window for prevention or remediation may have already closed, leaving courts able to compensate victims only after irreversible damage has occurred and long after the systemic practice could have been stopped.

The Supreme Court justified its decision by drawing a sharp line between “concrete” injuries that have already occurred and “potential” harms that might occur in the future, holding that only the former qualify for standing under Article III [7]. But this distinction often collapses when harm is probabilistic by nature. The Court treated the difference between plaintiffs with standing and those without as a question of injury severity. In reality, the only difference was timing and chance: whether TransUnion happened to send a particular report before the litigation.

Ultimately, such a requirement fundamentally misunderstands how systemic harm operates; structural harms rarely manifest uniformly or immediately. They create risk, elevate probabilities, and generate harm that accumulates over time. By requiring individualized proof of concrete realized injury before recognizing standing, TransUnion makes it effectively impossible to challenge systemic practices until they have already caused widespread damage.

3.  Class Certification Treats Variation as Disproving Pattern

The Court’s new approach to class certification has made it far harder for groups of people to challenge systemic discrimination together. The rules for class certification determine whether a plaintiff may sue on behalf of a group. Federal Rule of Civil Procedure 23 requires plaintiffs seeking class certification to demonstrate "commonality”–that their claims "raise questions of law or fact common to the class" [8]. Historically, this "commonality" requirement was straightforward: courts asked whether the defendant engaged in a common practice affecting all class members as seen in cases like General Telephone Co. of Southwest v. Falcon (1982) and Amchem Products, Inc. v. Windsor (1997). The focus was on the defendant's conduct, not whether every plaintiff suffered identical injuries in identical ways.

Wal-Mart Stores, Inc. v. Dukes abruptly transformed this analysis [9]. The case involved approximately 1.5 million female Wal-Mart employees challenging the company's pay and promotion practices. The plaintiffs presented extensive statistical evidence demonstrating that that women earned less than comparable men with the same job titles, experience, and performance reviews across every region, in every job category, and at every seniority level [10]. The pay gaps persisted even after controlling for legitimate variables; these disparities were systematic, pervasive, and unexplained by neutral factors.

Wal-Mart's defense, however, did not dispute the statistics but instead centered on discretion. The company's official policy delegated pay and promotion decisions to local store managers. No corporate memorandum explicitly mandated discrimination; the policy simply granted managers discretion. The Supreme Court held that this discretion defeated Rule 23's commonality requirement [11]. Because each of Wal-Mart's thousands of managers theoretically made independent decisions, the Court found no single common question applicable to all 1.5 million women. These were individualized determinations, not a common practice. The nationwide statistical pattern, standing alone, could not establish commonality without proof of a uniform explicit policy directing discrimination [12].

I argue that this line of reasoning is both circular and devastating for civil rights enforcement. Modern discrimination does not announce itself through explicit policies.No contemporary company maintains explicit policies mandating lower pay for women; such practices were prohibited decades ago. Instead, today's discrimination operates through accumulated discretionary decisions, unconscious bias, and structural barriers. A manager does not consciously decide, “I will pay her less.” Instead, the manager thinks, “He seems like stronger leadership material,” and these seemingly neutral judgments, influenced by systemic bias, accumulate across thousands of decisions to produce persistent gender disparities.

The Court thus in TransUnion created an impossible standard: if a company has an explicit discriminatory policy–that is, a written rule or directive openly treating one group less favorably–plaintiffs can certify a class. But if a company grants managers discretion and those managers systematically discriminate (which is precisely how modern discrimination functions) the harm is too "individualized" for class treatment. The more subtle and decentralized the bias, the less it can be proven as collective harm.

To accept the Court’s holding, one must credit its implicit logic. The argument requires believing that systematic statistical disparities affecting 1.5 million employees result from coincidence. Women in every state earned less than comparable men, but the Court found no pattern because each manager exercised independent discretion. The reasoning assumes that thousands of independent decision-makers coincidentally made biased decisions in the same direction, disadvantageous to the same group, without any common cause.

Consequently, the Dukes decision effectively ended large-scale employment discrimination class actions, leaving individual litigation as the only recourse. But individual plaintiffs rarely have the resources to litigate against major corporations. One person against Wal-Mart is not a fair fight, which is precisely why class actions existed. Dukes eliminates the procedural mechanism that made challenging systemic discrimination practically feasible, ensuring most claims will never reach the merits.

4. Personal Jurisdiction Scatters National Harm Across State Lines

The Supreme Court’s recent approach to personal jurisdiction has fragmented national harms into isolated state-by-state disputes, making collective accountability far more difficult. Personal jurisdiction doctrine determines which state courts have authority over particular claims. The fundamental principle is fairness to defendants: plaintiffs generally must sue either where the defendant is headquartered or where the plaintiff's specific injury occurred [13]. For national corporations, this meant courts traditionally allowed consolidation of related claims in a single convenient forum to avoid relitigating identical questions fifty times.

Bristol-Myers Squibb Co. v. Superior Court (2017), again, substantially narrowed this practice [14]. The case involved Plavix, a blood-thinning medication that allegedly caused serious internal bleeding. Six hundred seventy-eight plaintiffs from 33 states sued the pharmaceutical company in California state court [15]. The company maintained substantial research and marketing operations in California. Every plaintiff took the identical drug, alleged the same design defect, and suffered similar injuries from the same product.

Despite this nationwide commonality, the Supreme Court held that California courts lacked personal jurisdiction over claims brought by the 592 non-California plaintiffs [16]. Each person, the Court ruled, had to sue in their home state, despite the fact that the product, the company, and the alleged wrongdoing were identical. The Court reasoned that the non-California plaintiffs' injuries had no connection to California as a geographic place [17]. They did not purchase the drug there, consume it there, or suffer injury there. The company's general presence in California, no matter how substantial, could not support jurisdiction over claims unrelated to the state.

The immediate practical effect of this holding is to convert single national harms into fifty fragmented lawsuits. Consider a pharmaceutical company that injures 10,000 people nationwide with one defective drug. That company now faces fifty potential separate cases rather than one consolidated action. As a result, most individual claims become economically irrational to pursue. A typical injury might be worth $50,000, but the cost of retaining experts and completing a trial exceeds $200,000, making individual litigation entirely unfeasible.

Analytically, the deeper problem is that the pharmaceutical company is a national actor that designed, manufactured, and marketed one product nationwide according to one set of corporate decisions. If that drug is defective, the defect is a single scientific and legal question. Fragmenting the litigation into fifty lawsuits therefore means relitigating identical factual and legal questions fifty times, with fifty different juries examining the same evidence.

Such fragmentation, in turn, creates substantial risks of inconsistent verdicts. The drug may be found defective in some states but not others, even though it is the same chemical compound with the same scientific evidence. Juries in different states, examining identical evidence, may reach contradictory conclusions;. This inconsistency undermines a core rule-of-law value, which is that similarly situated parties should receive similar treatment.

Furthermore, individual litigation creates systematic advantages for deep-pocketed corporate defendants. Major corporations maintain nationwide law firms and can absorb the cost of defending parallel litigation. Individual plaintiffs, by contrast, cannot coordinate legal strategies across fifty states, cannot pool resources for expert witnesses, and cannot achieve the economies of scale that make litigation viable. The procedural rule systematically advantages the party with greater resources. 

5. The Three Doctrines Create an Impossible Standard

Examined individually, each procedural doctrine appears to serve legitimate purposes. Standing prevents courts from deciding abstract disputes. Class certification ensures manageability. Personal jurisdiction respects state sovereignty. Each rule articulates defensible principles.

However, doctrines do not operate in isolation. I argue that when applied together, as they so often are in systemic harm cases, the three requirements create an impossible standard that makes structural injury legally invisible. Consider what plaintiffs must now demonstrate simultaneously: First, they must show concrete individualized realized harm that has already occurred, not merely elevated risk (TransUnion). Second, they must demonstrate identical harm resulting from a uniform written policy, not varied impacts from discretionary decisions (Dukes). Third, they must sue in their home state, unable to join with victims in other forums (Bristol-Myers Squibb).

The pattern, therefore, reveals a fundamental incompatibility between these procedural requirements and structural harm. The Roberts Court’s doctrines assume that legitimate harms will be concrete (already happened), uniform (affecting everyone identically), and localized (occurring in one place). By all counts, a model of this fashion describes traditional common law torts effectively: a slip-and-fall at a specific store, or a car accident at a specific intersection.

But systemic harms are structural precisely because they are not localized, not uniform, and not individually realized in traditional ways. In short, the characteristics that make harm systemic (its dispersed scope, its probabilistic nature, its varied manifestations) are now the characteristics that make it procedurally unreachable.

The Roberts Court has not announced that civil rights law is defunct. Instead, the Court has made systemic harm unprovable by requiring it to present itself as individualized, uniform, and localized injury. This requirement is equivalent to making structural claims invisible: they fail not because courts find the evidence lacking, but because their structural nature disqualifies them procedurally before the merits are ever evaluated.

6. Conclusion

The perfect plaintiff does not exist when harm is structural. The Roberts Court's procedural revolution has not rejected the substantive law of civil rights, antidiscrimination, or environmental regulation. The statutory frameworks remain intact. Instead, the Court has made systemic violations legally invisible by requiring that structural harm present itself as atomized, identical, and localized injury–precisely what it is not.

Procedural requirements, of course, serve important functions. Standing, class certification, and personal jurisdiction prevent frivolous litigation and protect defendants. The argument here is not that these doctrines should be eliminated. Rather, the problem is that as currently configured by the Roberts Court, they create an impossible standard specifically for systemic harm. The procedural requirements assume a model of injury that is concrete, uniform, localized, which simply does not describe how modern structural violations operate.

The question facing courts and policymakers, therefore, is whether the law will adapt its procedural mechanisms to address how harm actually manifests in the twenty-first century, or whether sophisticated forms of structural wrongdoing will remain beyond judicial reach because they do not fit doctrinal categories designed for eighteenth-century common law torts. The Roberts Court has chosen the latter path. Until these procedural barriers are reconsidered, impact litigation as a tool for addressing systemic harm remains largely unavailable, and the civil rights state it built continues to erode. When systemic harm becomes legally invisible, so too do the people it affects: workers paid less, communities exposed to toxins, voters quietly disenfranchised. The result is not only diminished civil rights enforcement but a weakening of accountability itself, as law retreats from its role as a check on institutional power. A system that recognizes only perfect plaintiffs cannot remedy imperfect injustices, shifting the burden of reform from institutions to individuals least able to carry it—and in doing so, it erodes both the rule of law and public faith in its capacity to deliver justice.

Footnotes

[1] Brown v. Board of Education, 347 U.S. 483 (1954).

[2] Griggs v. Duke Power Co., 401 U.S. 424 (1971).

[3] U.S. Const. art. III, § 2.

[4] TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021).

[5] Id. at 2208-09.

[6] Id. at 2210.

[7] Id. at 2204.

[8] Fed. R. Civ. P. 23(a)(2).

[9] Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

[10] Id. at 342-43.

[11] Id. at 355-56.

[12] Id. at 355-57.

[13] International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[14] Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

[15] Id. at 1778.

[16] Id. at 1781.

[17] Id. at 1781-82.