Tuesday’s oral arguments at the Supreme Court should have been a cementing triumph for the late Justice Antonin Scalia. With the ascendance of six conservative justices—including his own former clerk, Amy Coney Barrett—Scalia’s form of textualism seemed poised to become the Supreme Court’s permanent approach to interpreting the law. Instead, in Tuesday’s oral argument, that passing of the torch faltered as his successors embraced an even more radical brand of textualism.
The case in question is relatively sleepy, with no protesting crowds or eager reporters waiting in the wings. Facebook v. Duguid asks whether a 29-year-old law, the Telephone Consumer Protection Act, applies to all telemarketing calls or only governs calls made using technology that was available in 1991 when the law was originally passed. This seemingly small point carries widespread consequences. If Facebook prevails, telemarketers everywhere will be freed from the TCPA’s most effective restrictions, which ban live calls to your cellphone. This means more spam calls (and you thought it was bad already).
But perhaps more relevant to the future of the court is the ideological battle raging beneath the surface in Duguid. Everyone involved agrees that the operative sentence in the TCPA was poorly drafted and is open to multiple interpretations. It says the law applies only to telemarketing devices that can “store or produce telephone numbers to be called, using a random or sequential number generator.” As one judge concluded after struggling with this language, “Clarity, we lament, does not leap off this page of the U.S. Code.” If you prefer to look solely at the grammar of the sentence (what could be called the grammatical view of textualism), the TCPA would restrict only devices that produce or store numbers using a random number generator. But that makes no sense—how can a number generator “store” anything? Meanwhile, if you choose to read the sentence in context (the contextual view of textualism), the law would apply both to devices that produce numbers using a random number generator and ones that store numbers generally.
In their seminal book Reading Law: The Interpretation of Legal Texts, Scalia and Bryan A. Garner describe their approach as a “fair-reading textualism,” where the reader’s ordinary understanding of the words in context is determinative. In contrast, “a hyperliteral brand of textualism” would look at the words purely in isolation, which Scalia and Garner made clear they “equally reject.” The majority of the circuit courts that have examined this sentence have adopted a broader, contextual interpretation, similar to what Scalia and Garner espouse.
Against this backdrop, the argument Tuesday unfolded dramatically. Scalia’s writing partner, Bryan A. Garner, personally argued the contextual interpretation on behalf of plaintiff Noah Duguid. He was confronted by battering questions from the court’s newest members, who expressed dissatisfaction with his conclusion. Justices Neil Gorsuch, Brett Kavanaugh, and Barrett all made clear they favored Facebook’s more literal, grammar-driven interpretation.
Justice Stephen Breyer publicly mused what a remarkable pivot this represents. In the past, textualists like Scalia had claimed their doctrine would prevent what they considered harmful “judicial activism.” They purportedly sought to maintain the laws as originally written by Congress and avoid injecting their own personal views into the outcomes.
Yet in Duguid, as Breyer said, it’s “the converse” happening. He explained, “Scalia always used to say, ‘That’s just done to expand the statute,’ but here we’re using it to contract the statute.” That’s because, if a strict grammatical view is adopted and “store” is firmly bound to “random and sequential number generator,” the law’s reach here actually shrinks. In the decades since 1991, random number generators have been surpassed by computer-based predictive dialers that don’t produce numbers. Thus, the TCPA would cover far less than Congress originally intended, with the verb produce first made vestigial by time, and store then sapped away by the court itself.
Facebook—represented with practiced skill by Paul Clement—suggests that this is a natural consequence of the law itself, that it was in effect a victim of its own success. In 2013, similarly dubious logic drove the court in Shelby County v. Holder to end voting protections for minority communities; Justice Ruth Bader Ginsburg wrote fiercely in dissent, “In the Court’s view, the very success of [Section] 5 of the Voting Rights Act demands its dormancy.” As she pointed out, that made little sense, since it presumed that declines in voting discrimination could persist without the instrument of their achievement: “the Court today terminates the remedy that proved to be best suited to block that discrimination.”
But even beyond the questionable merits of the case for curbing the TCPA, remember the supposed harm that textualism pledged to stop: the influence of personal preference in interpreting the law. Can this strict grammatical approach be applied without exhibiting that same weakness? One indicator suggests not.
In June, the court faced a major choice in how to interpret the word sex in the Civil Rights Act of 1964. There, the grammatical approach actually produced a broader, more inclusive interpretation, while the contextual method threatened to limit the law’s protections. Gorsuch attracted great ire from conservatives when he remained steadfast in his adherence to the grammar-based view and wrote the court’s landmark Bostock decision extending the Civil Rights Act to LGBTQ Americans.
Justice Samuel Alito pilloried that outcome in dissent: “The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.”* He added, “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated … ”
Six months later, it appears very likely that many of the justices who endorsed the contextual approach in Bostock will flip to a strict grammatical view in Duguid. The appearance that policy preferences may be driving that migration undermines one of the principal rationales Scalia theorized for textualism: that it offered a neutral benchmark for judicial decision-making. What we saw taking hold on Tuesday looks far more like a regressive variant of judicial activism. If so, the TCPA’s junk call provisions may be the first of many cherished protections whose reach is diminished under this new flag of textualism.
Correction, Dec. 9, 2020: This article originally misattributed Justice Samuel Alito’s opinion in Bostock to Justice Brett Kavanaugh.