(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

June 17 (Reuters) - U.S. Supreme Court Justice Clarence

Thomas has just adopted a legal theory that would eliminate a

spate of recent lawsuits filed by groups that share the

conservative justice's opposition to race-based diversity

programs.

In a concurring opinion in last week's Supreme Court

decision preserving access to the abortion pill mifepristone,

Thomas questioned the constitutional foundation of a legal

doctrine that allows groups to file lawsuits on behalf of their

members.

Thomas acknowledged Supreme Court precedent that explicitly

endorses the right of organizations to sue on behalf of members

who were allegedly hurt by the law or policy being challenged.

As my colleague Nate Raymond reported on Thursday, that case law

dates back to a 1958 Supreme Court decision allowing the NAACP

to sue Alabama for demanding disclosure of NAACP members' names

and addresses.

The justices subsequently cemented the doctrine, known as

associational standing, in a 1977 ruling that allowed a

Washington State agricultural agency to challenge a North

Carolina apple-shipping regulation on behalf of the agency's

members.

But in his new concurrence, Thomas said the Supreme Court

has never actually explained how such cases satisfy the

constitutional requirement that plaintiffs must allege a

concrete injury that can be addressed by the litigation.

"Associational standing," he wrote, "seems to run roughshod

over this traditional understanding of the judicial power."

Thomas took particular issue with cases in which groups

suing on behalf of a handful of members ask courts to block

policies, laws or regulations. The U.S. Constitution, Thomas

said, does not permit plaintiffs to seek remedies beyond their

own injuries. So organizations that have not experienced their

own injury, the justice said, should be not be permitted to

demand widespread prohibitions in the name of some supposedly

injured members.

That, of course, is precisely what some conservative groups

have been doing in the wake of last year's Supreme Court

decision barring colleges and universities from using race as a

consideration in their admissions policies. Citing a Civil

War-era anti-discrimination law, groups such as America First

Legal, the American Alliance for Equal Rights and Do No Harm

have filed a rash of lawsuits challenging businesses' programs

to boost racial and ethnic diversity.

The groups have typically asserted that because one or more

of their members was illegally excluded from the challenged

program, the doctrine of associational standing entitles them to

sue on behalf of their allegedly injured members.

Lower courts have split on exactly how much detail the

groups must provide about the members who claim to have been

wronged by corporate diversity initiatives in order to meet

constitutional standing requirements. The 2nd U.S. Circuit Court

of Appeals ruled in March that organizations seeking to enjoin

diversity programs must disclose the real name of at least one

injured member. (The group that brought the case, Do No Harm,

has petitioned for a rehearing.)

The 11th Circuit, by contrast, held earlier this month that

the American Alliance for Equal Rights met constitutional

standing requirements by offering nearly identical declarations

from three unnamed members who alleged they were illegally

excluded from a grant program for Black women.

But under Thomas's reasoning on associational standing,

there's no reason for lower courts to tinker with the precise

parameters of required disclosures about groups' injured

members. According to the justice's opinion in the abortion pill

case, these groups do not have a constitutional right to bring

lawsuits to shut down diversity programs.

I reached out to Do No Harm, America First Legal and the

American Alliance about Thomas's newly espoused view of

associational standing. Do No Harm and America First did not

respond. American Alliance's president, anti-affirmative action

activist Edward Blum, said he "has no opinion" on the new Thomas

theory.

Thomas has long been a maverick on constitutional standing

but has never before expressed skepticism about the entire

concept of associational standing. He did not question the right

to sue, for instance, of the Blum-founded group that won last

year's Supreme Court rulings against affirmative action policies

at Harvard and the University of North Carolina.

In the abortion pill case, the justice seems to have been

swayed by an amicus brief from Andrew Hessick, a law professor

at University of North Carolina. Hessick, who co-authored a

forthcoming University of Chicago Law Review article calling on

the Supreme Court to abandon the doctrine of associational

standing, previously asserted similar arguments in an amicus

brief in last year's affirmative action cases. Thomas did not

address Hessick's view in those cases but cited the professor's

brief twice in the new concurrence.

In an interview, Hessick noted that Thomas, whose opinion

was not joined by any other justices, is so far the only member

of the Supreme Court to have adopted the law professor's

skepticism about associational standing. But he predicted that

Thomas' opinion will spark debate in the lower courts.

"At the very least, talking about this is very important,"

Hessick said.

Hessick said courts should be particularly wary of

associational standing for groups that were created specifically

to bring lawsuits. His amicus brief in the affirmative action

case argued that the doctrine erodes the foundational principle

of separation of powers by allowing a person who is

ideologically opposed to - but not directly affected by - a law

or policy to "manufacture standing out of thin air" by founding

a group and recruiting like-minded members to claim an injury.

Both Hessick and Thomas said class actions, in which a

representative plaintiff sues on behalf of similarly situated

people, can accomplish the same ends as associational lawsuits

but avoid constitutional concerns through procedural rules that

assure class members were injured.

Hessick told me there are plenty of ways, including class

actions and pseudonymous lawsuits, for people who fear reprisal

to vindicate their rights without relying on a group to sue on

their behalf.

As circuit courts debate standing in diversity challenges by

conservative groups, we'll see if Thomas' adoption of Hessick's

argument catches on.

Read more:

Supreme Court's Thomas questions ability of groups to

challenge US laws

US appellate courts split on threshold for lawsuits

challenging diversity programs

Conservative groups object to 'naming names' rule from

Pfizer ( PFE ) diversity decision