In February, I wrote: “When President Trump put forward 10th Circuit Judge Neil Gorsuch for the top court, the media, understandably, took sides, for and against the nomination. The only point of agreement was that Judge Gorsuch is a graceful writer”.
After a contentious confirmation hearing, a filibuster, and a rules change, Justice Gorsuch ascended to the high court bench to take Justice Scalia’s vacant seat. So, what is the early line on what type of Jurist Gorsuch will make? It’s really too early to tell. But some very interesting signs exist.
During his first day on the bench, Justice Gorsuch asked 22, yes, 22 questions of the advocates. In contrast, Justice Clarence Thomas waited 10 years before putting a single question to an advocate before him. But SCOTUS watchers eagerly awaited the first opinion to be penned by the newly anointed jurist. And that came with Henson et al. v. Santander Consumer USA Inc., a controversy that called for the Court to determine the reach of the Fair Debt Collection Practices Act – – and the penalties it imposed for unfair debt collection practices. It presented a pure question of statutory interpretation, asking whether a company (Santander) who purchased debts after a default qualified as a “debt collector” under the statute and thus subject to the penalties imposed by the legislature.
The court reached a unanimous decision: Santander, as a “secondary market” purchaser of a defaulted loan, did not fall within the embrace of a “debt collector” as defined by the legislation enacted in 1977 (before the “secondary market” even existed). By tradition the first opinion assigned to the newest member of the Court is a unanimous decision. And so, Justice Gorsuch got Henson. The decision seems to confirm two points: Justice Gorsuch is indeed a graceful writer and a “textualist” as was Scalia.
Unlike many opinions, the Henson decision reads more like a fine piece of journalism than a turgid legal exegesis. Just take Justice Gorsuch’s introduction to the controversy:
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.
As a textualist, Justice Gorsuch recognized while it may have been the intent of Congress to curb the evils of some debt collection practices, the text of the actual legislation simply did not reach a secondary market collector. And so, Justice Gorsuch ended this way:
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.
Although few insurance matters reach the high court, to be sure, Justice Gorsuch will parse whatever policy wording is in issue.
And that’s it or this This and That. If you have any questions or comments about Justice Gorsuch’s prose style or his textual analysis, please call or email Dennis.