Progressives should take careful note of the unanimous victory the Supreme Court handed down for Facebook in early April. The tech giant’s win gutted a 30-year-old federal law preventing junk calls, a boon to big corporations that now face less liability for annoying calls and texts. But even more importantly, it signaled the absolute supremacy of textualism—the conservative credo—as the universal language spoken not only by the newly emboldened majority but also by the Court’s diminished liberal wing. A strict textualist reading was almost a preordained conclusion given the 6-3 balance on the Court, but the surprising aspect of Facebook v. Duguid was that the liberals joined in, giving us a unanimous 9-0 ruling, and no dissent.
The impassioned dissent—typified by the likes of Justice Oliver Wendell Holmes, “The Great Dissenter”— is a romantic motif in American law. But it is one that packs a serious punch in the judicial process, as Justice William Brennan observed. For Brennan, dissents can both memorialize perspectives that future jurists may resurrect and act as “a sort of ‘damage control’ mechanism” pointing out the limits of a flawed majority decision. No episode better illustrates that potential impact than Justice Scalia’s lone dissent in Morrison v. Olson. Less than two years on the job, Scalia defied his more senior colleagues and called out a decision on executive power that he considered harmful. Eleven years later, Scalia’s position had gained the upper hand and that law was abandoned.
That’s why the decision in Duguid last week feels like such a lost opportunity for the liberal wing. We know that Sonia Sotomayor, who wrote for the Court, doesn’t shy away from taking a strong stand when her beliefs warrant doing so. Her fierce, brilliant dissents speak for themselves, and she’s challenged textualist orthodoxy in the past. But the contrast between the lively variety of perspectives offered in this case by the Courts of Appeals and the ideological homogeneity seen at the Supreme Court should be a flashing warning light for progressives.
First, some context. Duguid centered on a particularly thorny question of statutory interpretation: whether the Telephone Consumer Protection Act (TCPA), a 1991 law that bans certain forms of telemarketing, only applies to calls placed using the aging dialing systems that existed in 1991. There had been a vibrant debate among the six Courts of Appeals that wrestled with this problem before it wound up at the Supreme Court. Three had used common sense and context to interpret the law broadly, allowing it to apply to modern telemarketing devices; two took a rigid view of grammar, producing a narrow interpretation that restricted its coverage to antiquated technologies. A sixth court was sufficiently befuddled that it reached no clear conclusion at all.
In Duguid, the Supreme Court firmly put the kibosh on a contextual reading that “accords with the ‘sense’ of the text.” Instead, Sotomayor, writing on behalf of seven other justices, made clear that in their view, “[w]e begin with the text” and the text alone. Perhaps this should not be surprising—Scalia successfully shepherded textualism from a fringe theory to the ascendant interpretive methodology in the law, and shortly before Scalia’s death, Elena Kagan famously conceded, “We’re all textualists now.”
The Duguid opinion explains that the Court thinks repairing a law’s muddled language is a purely legislative task. The losing side’s real “quarrel is with Congress,” Sotomayor writes. “This Court must interpret what Congress wrote…” In short, it is a fairly typical application of textual formalism, one that would have been entirely natural coming from a conservative member of the Court.
What drove Justice Sotomayor, who is famous for her powerful and moving dissents, to adopt this rigid textualist reading? Of course, she may have simply concluded it produced the right result here. But as an incisive strategist, she also may have realized that by mimicking the language and instincts of the right, she could weave a more moderate opinion than what would have emerged from her more conservative colleagues’ pens—a point strengthened by Justice Alito, who wrote a separate concurrence joining Justice Sotomayor’s result but critiquing some aspects of her methodology.
The question then becomes: What will the three liberals’ strategy be after adopting the imprimatur of textualism? They make clear in Duguid, as they have before, that they are comfortable reversing lower court interpretations that fail to rely on strict textualism. But the liberal contingent hasn’t fully explained what that philosophy means to them, or where a future liberal majority (that will one day surely come) might take the Court. Is their vision just to practice a more moderate version of textualism, or will they espouse something bolder and entirely their own?
The progressive answer could be a variant of textualism itself. For instance, so-called “new textualism” argues that the conservative toolkit can just as easily lead to liberal results. That approach worked to stunning effect last year when a strictly textual interpretation produced a major victory for LGBTQ rights.
Or the answer could be based on something entirely different, like the work of Larry Kramer, a farsighted constitutional scholar who now heads the Hewlett Foundation. His vision for “Popular Constitutionalism” would have turned the common understanding of constitutional law on its head. According to Kramer, citizens and political leaders, not judges, wrote the Constitution in 1787, and they should still have a say in what it means today.
Legal academia is full of such proposals, but so far, none has attracted widespread adoption on the left equivalent to the way textualism dominates the right. The next big idea would benefit from a committed champion on the Court, just as textualism flourished under the encouragement of Justice Scalia.
Which is to say this is the moment, with conservatives firmly in control on the Court, for progressives to be focused not just on skillfully navigating the textualist environment—although that’s important in the short-term—but on developing their preferred interpretative approaches, using iconic dissents if necessary. After all, when the modern textualist movement first arose, it was usually by appearing in dissenting opinions. Yes, unanimity is preferable where possible, and moderating a bad outcome may sometimes be the best solution given the tough math on the Court. But the three liberal justices, and the progressive legal community more broadly, need to get to work on their own ideas. Otherwise, the only languages a future left-leaning Court will know how to speak will be different variations of conservative orthodoxy.