Justice Gorsuch’s first opinions reveal a confident textualist – Washington Post

 In U.S.

Supreme Court Associate Justice Neil Gorsuch is seen during an official group portrait at the Supreme Court building in Washington on June 1. (J. Scott Applewhite/Associated Press)

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues.

First came Gorsuch’s opinion for a unanimous court in Henson v. Santander Consumer USA. In this brief opinion — notable for its lack of section breaks — Gorsuch held that a company may seek to collect acquired debts without qualifying as a “debt collector” under the Fair Debt Collection Practices Act. Focusing on the plain language of the statute, Gorsuch concluded that debt collectors under the FDCPA are third-party collection agents, not those who seek to collect debts they are owed themselves.

Many commentators noted the alliteration in the opinion’s opening passage:

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors. Everyone agrees that the term embraces the repo man—someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself— does that make you a “debt collector” too? That’s the nub of the dispute now before us.

Later on, Gorsuch stressed that it is not for the courts to override or extend statutory text to conform with legislative purpose.

while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. . . . Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pursues its [stated] purpose[ ] at all costs.” . . . For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legislature says . . . what it means and means . . . what it says.”

The opinion concludes:

In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act’s demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past. After all, it’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.

Yesterday, the court issued Maslenjak v. United States. Justice Elena Kagan delivered the opinion of the court, and Gorsuch wrote an opinion concurring-in-part and concurring-in-the-judgment, joined by Justice Clarence Thomas. Here Gorsuch argued that the text of the statute in question called for a more limited holding than that adopted by the court.

The Court holds that the plain text and structure of the statute before us require the Government to prove causation as an element of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization. I agree with this much and concur in Part II–A of the Court’s opinion to the extent it so holds. And because the jury wasn’t instructed at all about causation, I agree too that reversal is required.

But, respectfully, there I would stop. In an effort to “operational[ize]” the statute’s causation requirement, the Court says a great deal more, offering, for example, two newly announced tests, the second with two more subparts, and a new affirmative defense—all while indicating that some of these new tests and defenses may apply only in some but not all cases. . . . The work here is surely thoughtful and may prove entirely sound. But the question presented and the briefing before us focused primarily on whether the statute contains a materiality element, not on the contours of a causation requirement. So the parties have not had the chance to join issue fully on the matters now decided. . . .

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