First, core private rights may not be taken away by Congress or the Executive Branch without involvement of a court, except pursuant to longstanding historical exceptions, as in the case of territorial and military courts. Wellness Intern. Network, Ltd. v. Sharif, 575 U.S. 665, 71719 (2015) (Thomas, J., dissenting); Ortiz v. United States, 138 S. Ct. 2165, 2185-2187 (2018) (Thomas, J., concurring).
Second, adjudication of core private rights in federal courts means adjudication by federal courts, in a meaningful sense. Therefore, fact finding in administrative agencies may not be entitled to preclusive effect in an Article III court proceeding involving core private rights. B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 171‑72 (2015) (Thomas, J., dissenting). Administrative agencies also may not be able to claim conclusive deference to their interpretations of legal texts. Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 123-24 (2015) (Thomas, J., concurring) (questioning whether Seminole Rock / Auer deference is consistent with the Constitution); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2440 (2019) (Gorsuch, J., dissenting) (same).
Third, plaintiffs with injuries to private rights have an easier time establishing Article III standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1551 (2016) (Thomas, J., concurring). By contrast, plaintiffs who seek to vindicate only public rights or the private rights of others will have a difficult time satisfying Article III’s standing requirements. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020) (Thomas, J., dissenting).
It is useful to study the distinction more fulsomely. According to Justice Thomas, “[h]istorically, ‘public rights’ were understood as ‘rights belonging to the people at large, as distinguished from ‘the private unalienable rights of each individual.’” Wellness, 575 U.S. at 713.
“In the tradition of John Locke, William Blackstone in his Commentaries identified the private rights to life, liberty, and property as the three ‘absolute’ rights—so called because they ‘appertain[ed] and belong[ed] to particular men … merely as individuals,’ not ; ‘to them as members of society [or] standing in various relations to each other’—that is, not dependent upon the will of the government.” Wellness, 575 U.S. at 713 (citing 1 W. Blackstone, Commentaries on the Laws of England 119 (1765). In general, private rights are thus viewed as including property rights, contract rights, and common law torts. See Wellness, 575 U.S. at 718; Stern v. Marshall, 564 U.S. 462, 484 (2011); Caleb Nelson, 107 Colum. L. Rev. 559, 571, 591 (2007) (cited in numerous Thomas opinions).
“Public rights”—those that are dependent upon the will of the government—can be broken down into two categories: “‘public rights belonging to the public at large,’ and ‘privileges’ or ‘franchises,’ which public authorities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 344 n.2 (2015) (Thomas, J., dissenting). Usually lumped into the category of “public rights belonging to the public at large” include rights we’re all familiar with, like driving on public roads and sailing on public waters, as well as compliance with the laws generally. Spokeo, Inc. v. Robins, 126 S. Ct. 1540, 1551 (2016) (Thomas, J., concurring). Examples of “privileges” or “franchises” might include patents, registered trademarks, the right to bring and participate in qui tam suits, tax exemptions, licenses, and other benefits not conveying contractual rights or vested interests in property on individuals. See Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1373 (2018); B&B Hardware, 575 U.S. at 172; Nelson, 107 Colum. L. Rev. at 571.
“Privileges” or “franchises” bear similarities to private rights, in that they may be bestowed on individuals, but they “depend upon express legislation” and “hath [their] essence by positive municipal law.” Teva, 574 U.S. at 344 n.2. Thus, Justice Thomas has warned, “no matter how closely a franchise resembles some ‘core’ private right, it does not follow that it must be subject to the same rules of judicial interpretation as its counterpart.” Id.
That warning, issued in 2015, proved prescient: A critical question lurking in several recent cases at the Supreme Court has been whether statutory provisions created rights that are enforceable in the federal courts without other evidence of injury. See, e.g., Spokeo. To establish Article III standing to challenge a violation of a private right. An individual suing to challenge a violation of a public right, by contrast, will need to show that he “has suffered a concrete harm particular to him,” distinct from that of the general population. Id. at 1553 (Thomas, J. concurring).