A “view” from the courtroom: Justice Gorsuch’s first opinion

There was much speculation that Justice Neil Gorsuch would be assigned at least one opinion from the 13 cases of the court’s April sitting, which began one week after he took his oaths to join the court on April 10.

The court takes the bench this morning, with Justices Stephen Breyer and Samuel Alito absent, and we have our answer.

Chief Justice John Roberts says, “In case number 16-349, Henson versus Santander Consumer USA, Justice Gorsuch has his first opinion for the court.”

“Thank you, chief,” Gorsuch says. He leans forward to deliver an opinion holding that a company may collect debts that it purchased for its own account, like Santander did here, without triggering the statutory definition of a “debt collector.”

He doesn’t repeat the snappy first line of his written opinion, about the “disruptive dinnertime calls, downright deceit, and more besides” that “drew Congress’s eye to the debt collection industry.”

He does mention that everyone agrees that the term “debt collector” under the Fair Debt Collection Practices Act “embraces the repo man.” But this case is about whether those who purchase debt and try to collect if for themselves are covered by the act. The district court, and the U.S. Court of Appeals for the 4th Circuit, ruled for consumer-finance company Santander.

Gorsuch is soon delivering a grammar lesson drawn from the briefs. He notes that the federal statute defines debt collectors to include those who regularly seek to collect debts “owed … another.” And by its plain terms that language focuses on third-party collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself.

He discusses the petitioners’ argument that “owed” is the past participle of “to owe” and thus embraces many debt purchasers like Santander that collect purchased debts because they necessarily seek to collect debts previously owed to another.

But that does not follow as a matter of good grammar, let alone ordinary meaning, Gorsuch says. Past participles like “owed” are routinely used as adjectives to describe the present state of a thing. He mentions an example from among several in his written opinion: “The burnt toast is inedible.”

Gorsuch moves on to some of the petitioners’ policy arguments that Congress passed the statute in large part to add new incentives for independent debt collectors to treat consumers well. “It is not this court’s role to rewrite” a constitutionally valid statutory text based on speculation about how Congress might have intended to address the burgeoning business of purchasing defaulted debt.

Gorsuch concludes by saying “The judgment is affirmed.” He neglects to announce the voting lineup, although those of us in the courtroom, without the opinion yet in hand, presume that the vote is unanimous simply because he didn’t announce any concurrences or dissents. We are correct.

Justice Ruth Bader Ginsburg is up next with two opinions. She appears to be wearing her “majority opinion jabot,” a large, gold-colored number.

Over the weekend in Washington, we spotted a man wearing a tribute to the Notorious R.B.G., complete with gray wig pulled tightly back into a bun, glasses similar to the justice’s, a judicial robe (not sure if it was polyester or not), and a makeshift jabot. The only off note was the man’s blue sneakers. That, and his five o’clock shadow.

The real R.B.G. delivers the opinion in Microsoft Corp. v. Baker, about federal appeals court review of an order denying class certification. The case stems from a putative class action by a group of owners unhappy with a design defect in Microsoft’s game console. Even from the bench, Ginsburg tosses off the name “Xbox 360” as if she’s had one of her own for years.

She does not forget to announce the lineup. Justice Clarence Thomas has filed an opinion concurring in the judgment, in which the chief justice and Alito have joined. Gorsuch took no part in the case.

Ginsburg’s second decision is Sessions v. Morales-Santana, which holds that the gender line that Congress drew in the Immigration and Nationality Act treating unwed U.S.-citizen mothers more favorably than unwed U.S.-citizen fathers is incompatible with the Fifth Amendment’s equal-protection clause.

She briefly addresses the thorny question of the appropriate remedy for the court’s holding, essentially leaving it to Congress to consider settling on a uniform way to address this particular immigration situation in a way “that neither favors nor disadvantages any person on the basis of gender.”

As Ginsburg is reading her statement in Morales-Santana, Thomas passes a note, via a marshal’s aide, to Gorsuch. The junior justice reads it, then reaches for a bench memo to write a reply, which he then hands to the aide to deliver to Thomas.

Thomas reads the note, then nods and gives a quick thumbs-up to Gorsuch. Perhaps one day, when Thomas has made his papers available to researchers (ha!), we will learn the contents of that note.

The note also reminds us of a story Ginsburg likes to tell about her first opinion assignment, and the encouragement she received from Justice Sandra Day O’Connor. Though the tradition is that new justices get a relatively easy, often unanimous decision for their first opinion, Ginsburg has recalled being dismayed about her first assignment from then-Chief Justice William Rehnquist during October Term 1993.

“The chief gave me an intricate, not at all easy, ERISA case,” Ginsburg said in a 2015 speech that is included in her book, “My Own Words.”

“I sought Justice O’Connor’s advice,” Ginsburg continued. “It was simple. ‘Just do it,’ she said.”

After Ginsburg read a summary of the 6-3 opinion in John Hancock Mutual Life Insurance Co. v. Harris Trust & Savings Bank in December 1993, O’Connor, who was among the dissenters, sent over a note that read: “This is your first opinion for the court, it is a fine one. I look forward to many more.”

Back to October Term 2016. Thomas has the last opinion of the day, in Sandoz Inc. v. Amgen Inc., regarding the Biologics Price Competition and Innovation Act of 2009. If Gorsuch delivered a grammar lesson today, and Ginsburg a civics lesson,Thomas is again cast in the role of the court’s science teacher to explain about biologic and biosimilar drugs.

Thomas reads his summary at a leisurely pace before announcing that the U.S. Court of Appeals for the Federal Circuit has again been reversed. The opinion of the court for this case argued on the last day of oral arguments is unanimous (including Gorsuch), with a concurring opinion by Breyer.

As Ginsburg and Thomas were reading from their opinions, Gorsuch occasionally took sips of coffee (or his beverage of choice) from a silver cup. Gone is the tall paper Starbucks-style cup he brought to the bench a couple of times during his first week as a justice.

That practice of the newest justice — perhaps considered too casual for the ornate courtroom — has already been discarded like burnt toast.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in Henson v. Santander Consumer USA, Inc. The author of this post, however, is not affiliated with the firm.]

Posted in: Featured, Merits Cases

CLICK HERE FOR FULL VERSION OF THIS STORY