This morning, in FAA v. Cooper, the five arch-conservatives engaged in Olympic-quality legal gymnastics to find a way – any way – to limit individuals’ ability to sue for the damages they suffer when the federal government illegally releases personal information about them. The case involves a man whose HIV status and sexual orientation, which he had been concealing for years, was unlawfully revealed by the Social Security Administration to other parts of the federal government, leading to the public exposure he had been desperate to avoid.

Congress passed the Privacy Act of 1974 to safeguard people’s privacy against government invasion. The law has a number of very detailed requirements for the management of records held by federal government agencies, specifically to prevent release of private information that could result in "substantial harm, embarrassment, inconvenience, or unfairness to any individual." Note the fact that preventing embarrassment is specifically mentioned as a key goal of the statute, something that would be obvious even if not stated outright in a law designed to protect personal privacy.

To give the law teeth, Congress gave people the ability to sue the government for violations of the law, allowing them to collect "actual damages." In general, "actual damages" means any damages actually suffered, as opposed to damages that are based on conjecture or damages intended to punish the wrongdoer. Using common sense, the way the term is usually interpreted, the purpose of the statute, and Black’s Law Dictionary definition, "actual damages" includes the damages that you suffer due to mental and emotional distress.

But the usual five-justice right wing majority, in an opinion written by Justice Alito, ruled that Congress meant for "actual damages" to include only pecuniary damages. So even though the law gives safeguards explicitly designed to prevent embarrassment, you can’t sue over the embarrassment the statute was designed in part to prevent.

To reach this result, the majority grasped onto the fact that in some instances, involving different areas of the law and specific contexts not present here, the term "actual damages" has sometimes been defined to include only pecuniary damages. Therefore, they ruled, that casts doubt on what Congress intended in the Privacy Act, and that, in turn triggers a need to turn to all sorts of canons of statutory interpretation to figure out the meaning.

One of those canons states that a waiver of sovereign immunity [the government’s right not to be sued without its consent] will not be read into a statute unless it is unequivocally expressed. Since the majority had manufactured doubt about what Congress meant by "actual damages," they ruled that Congress had not meant to allow Privacy Act lawsuits in cases where the only damages are emotional.

Justices Sotomayor wrote the dissent, which Justices Ginsburg and Breyer joined. (Justice Kagan was recused). As she wrote:

After today, no matter how debilitating and substantial the resulting mental anguish, an individual harmed by a federal agency’s intentional or willful violation of the Privacy Act will be left without a remedy unless he or she is able to prove pecuniary harm. That is not the result Congress intended when it enacted an Act with the express purpose of safeguarding individual privacy against Government invasion. And it is not a result remotely suggested by anything in the text, structure, or history of the Act.