Ever since the Squire Patton Boggs TCPA defense team earned the first stay in the nation, there have been innumerable motions filed in TCPA cases asking district courts to pause matters pending the outcome of the big TCPA SCOTUS review in Barr v. AAPC.
Since the ruling may very well be the end of the TCPA (45% chance), pausing litigation only makes sense to conserve the resources of the parties. Unsurprisingly 99% of these motions have been granted and rulings issuing stays have become so routine that we’ve stopped covering them.
As the motions pile up courts the one thing that courts have NOT been doing is guessing at what the Supreme Court might do with the TCPA. Indeed, numerous courts have expressly declined to look into the crystal ball and predict what SCOTUS will do—the reasoning is simple: there’s a chance the court will set the statute aside, and that is enough to make it prudent to wait and see what happens rather than force the parties to litigate a potentially invalid claim.
But at least one court has offered a line by line assessment of the transcript of the oral argument in Barr and made a clear prediction. Notably the Judge authoring the opinion references being a former Supreme Court law clerk, so the analysis has some heft. (We spokewith our own former Supreme Court law clerk Ben Beaton on our big podcast breaking down the decision.) And while the Court’s prediction differs markedly from my own, the Court’s analysis is quite compelling and well worth consideration– so I figured I would share it with all of you.
The decision is Childress v. Desilva Auto. Servs., No. CIV 20-0136 JB\JHR, 2020 U.S. Dist. LEXIS 115107 (D. N.M. July 01, 2020) and the prognostication is as follows. Enjoy:
At oral argument, the Justices seemed largely to agree that the government-debt exception is an unconstitutional content-based speech restriction. See Transcript of Oral Argument at 6:2-3, Barr v. AAPC, (No. 19-631)(Roberts, C.J.)(“Oral Arg. Tr.”)(“I don’t see how that gets you out of the content category.); id. at 12:17- 22 (Ginsburg, J.)(“Counsel, I don’t see how you can escape a content-based distinction. If the content is a debt owed to the government, that’s the content of the message, you owe the government for a student loan or whatever, then the call is okay.”); id. at 31:19-21 (Kavanaugh, J.)(“I think the government-debt exception is almost certainly content-based, at least for me).
Some of the Justices, however, suggested that, although the government-debt exception is content-based, strict scrutiny may not be the applicable level of review. For example, Justice Kagan asked: [W]hy should we care? You know, even if Congress didn’t write this in exactly the right way, why is it that we should care so much as to put strict scrutiny into place? This doesn’t raise any real concerns about government censorship, about the suppression of ideas, about a distorted marketplace of ideas. Oral Arg. Tr. at 62:3-10 (Kagan, J.). Nonetheless, there was broad agreement that the government-debt exception, at least, is unconstitutional. See, e.g., Oral Arg. Tr. at 21:17-18 (Sotomayor, J.)(suggesting that the government-debt exception is an impermissible content-based speech restriction); id. at 31:22-24 (Kavanaugh, J.)(same).
The Justices thus almost uniformly focused on severability. See, e.g., Oral Arg. Tr. at 42:11-13 (Thomas, J.)(“I’d like you to explain . . . why the restriction is the constitutional problem as opposed to the exception.”). Although the Justices focused primarily on severability, the Justices expressed little appetite for invalidating the TCPA in its entirety. For example, Chief Justice Roberts stated: Congress had this law for 25 years and then they added this, you know, pretty discrete exception that created the problem we have today. It seems pretty obvious that the way they would solve it is [to] get rid of this exception. It’s an extremely popular law. Nobody wants to get robocalls on their cell phone. Oral Arg. Tr. at 14:15-22 (Roberts, C.J.). Justice Sotomayor similarly asked why the Supreme Court should “be striking down the entire statute . . . [I]f the issue is the remedy, shouldn’t we let the circuit below decide that question?” Oral Arg. Tr. at 55:11-19 (Sotomayor, J.). Justice Alito also said that AAPC’s requested relief renders Congressional intent “irrelevant.” Oral Arg. Tr. at 51:9-10 (Alito, J.). Justice Kavanaugh further asserted that the TCPA “is one of the more popular laws on the books because people don’t like robo-calls,” which law Justice Kavanaugh characterized as “just common sense.” Oral Arg. Tr. at 69:17-19 (Kavanaugh, J.). Justice Kavanaugh then asked the AAPC whether it “want[s] to argue against that common sense?” Oral Arg. Tr. at 69:22-23 (Kavanaugh, J.).
It is difficult to predict Supreme Court outcomes based on the Justices’ questions and demeanor at oral argument. See, e.g., Timothy Johnson et al., The Influence of Oral Arguments on the U.S. Supreme Court, 100 Am. Pol. Sci. Rev. 99, 99 (2006)(noting that “comparatively little is known about how oral argument affects [the] choices [that Justices make]”); T. Rombeck, “Justice Takes Time for Q&A” at 5B, Lawrence Journal-Word, Oct. 30, 2002 (Justice Thomas opining that “I think Justices, 99 percent of the time, have their minds made up when they go to the bench.”). The Court, as a former Supreme Court law clerk, saw oral arguments change at least one Justice’s mind. To the extent that it is possible to make such a prediction, it is widely believed that the Justices direct relatively more questions to the party that ultimately loses. See, e.g., Lee Epstein, William M. Landes & Richard A. Posner, Inferring the Wining Party in the Supreme Court from the Pattern of Questioning at Oral Argument, 39 J. Legal Stud. 433, 434 (2010)(confirming, by empirical analysis, that a party is more likely to “lose if he is asked more questions than his opponent during oral arguments).
Here, the Justices generally gave the parties similar treatment regarding their questioning. See generally Oral Arg. Tr. (providing that the parties were questioned similarly). This predictive method may be inapposite, however, with the Supreme Court’s current telephonic oral argument process, in which the Chief Justice calls on each Justice in order of seniority, thus — in theory, at least — equally punctuating each party’s argument with the Justices’ questions. See Adam Feldman, “Empirical SCOTUS: Changes in Supreme Court oral argument format: The good, the bad and the ugly,” SCOTUSblog (May 19, 2020), https://www.scotusblog.com/2020/05/empirical-scotuschanges-insupreme-court-oral-argument-format-thegood-the-bad-and-the-ugly/.
Instead, it is notable that the Justices expressed broad agreement that the government debt exception is both unconstitutional and severable. Similarly, it is axiomatic that, at least in theory, the Supreme Court prefers narrow remedies to sweeping ones.
Accordingly, because the pre-amendment TCPA was uniformly viewed as constitutional, and because Congress clearly expressed a preference for severability in the TCPA, the Court predicts that the Supreme Court’s opinion in Barr v. AAPC will have no bearing on the viability of Childress’ claims.
So there you have it folks. Some meaty analysis of the SCOTUS TCPA oral argument transcript to holdyou over until Monday when we–very likely–will have a ruling.