7/8: Supreme Court to Robocallers: Stuff it!

July 8, 2020


Sorry, politicians. The Supreme Court announced this week that, by a vote of 7-2 (Gorsuch and Thomas dissenting), they'd turned down a bid by the American Association of Political Consultants to overthrow a ban on robocalls to cell phones.
The plaintiffs had argued that a 2015 addendum to the Telephone Consumer Protection Act of 1991 was unconstitutional. It was a carveout allowing calls for the collection of federally backed debt (think student loans, but also farm loans, home loans and so forth).

Kavanaugh, illustrated in the days
before he'd ever made a good decision.
 

The plaintiffs said the carveout was based on the calls' content. The Supreme Court agreed, but they thwarted the consultants' greater aim: to have the entire 1991 law scrapped. The Court said that law is constitutional, and it will remain standing.   

"Americans...are largely

united in their disdain

for robocalls," wrote

Justice Kavanaugh

Justice Kavanaugh addressed the consultants' strategy in his opinion for the majority: “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.” What's disruptive about this (otherwise delightful) ruling is that it is a challenge to one well-worn strategy for getting laws overturned: Getting the court to throw out an entire, far-reaching law based on a single troublesome clause. The most obvious examples are cases based on laws restricting abortion. Kavanaugh also included a statement that should draw little disagreement from his fellow citizens. “Americans passionately disagree about many things," he wrote. "But they are largely united in their disdain for robocalls.” What do you think of Kavanaugh's warning against trying to use a David-sized point to overthrow a Goliath-sized law?

Are there consequences beyond the abortion quagmire? Are there other examples where the strategy has worked? Is there a major law that you yourself would like to see struck down?



Illustration: Brett Kavanaugh - Caricature (49404202468).jpg" by DonkeyHotey is licensed under CC BY 2.0