As Justice Kagan has famously declared: “We are all textualists now.”
But textualism, while purporting to be the ultimate in objectivity and impartiality, is actually anything but evenhanded. In the hands of its fiercest proponents—namely those on the conservative side of the judicial spectrum—it means different things in different cases and for different people and constituencies.
The most recent example is Thursday’s decision in Facebook v. Duguid, a 9-0 opinion authored by Justice Sotomayor (not an April Fool’s Joke). The decision is a straightforward and paradigmatic example of what true textualism looks like. In most cases, the words of the statute govern even in the face of real-world consequences.
Duguid was a case under the Telephone Consumer Protection Act of 1991 (TCPA). Specifically, the Act provides consumer remedies for abusive telemarketing practices, including making certain calls or sending certain communications via an “automatic telephone dialing system.” As defined by the TCPA, an “automatic telephone dialing system” means equipment with the capacity both (A) “to store or produce telephone numbers to be called, using a random or sequential number generator,” and (B) “to dial those numbers.” 47 U.S.C. § 227(a)(1).
As relevant to the case, Facebook engaged in marketing practices that likely could have aroused Congress’ ire. It collected and stored consumers’ telephone numbers and used those numbers to send automated text messages. While some recipients authorized the messages, others didn’t and were unable to stop the notifications from coming. Plaintiff Duguid, in particular, never had a Facebook account (he may have had a phone number previously used by a Facebook customer). But Facebook didn’t use a random number generator.
Resolving a Circuit split, the Court held that, under the plain language of the TCPA, an auto-dialer does not come within the definition of “automatic telephone dialing system” unless it has the capacity to generate random or sequential phone numbers. Hence, Facebook did not violate the Act and Duguid had no claim. Full stop; end of story. Capturing and storing numbers and dialing them automatically in order to send unwanted text messages was not enough.
The Court repulsed Plaintiff’s contentions regarding Congress’ broad statutory purposes and goals. To the extent that the statute adopted an underinclusive definition, the remedy lied with Congress. Fair enough, hence the 9-0 disposition.
Contrast two 5-4 decisions under the Fair Labor Standards Act (FLSA), where a conservative majority stretched the plain language of the statute’s overtime exemptions in order to deny relief to employees.
Christopher v. SmithKline Beecham, 567 U.S. 142 (2012) involved pharmaceutical representatives, or detailers, who visited doctors to encourage them to prescribe the company’s drugs. The issue was whether they came within the outside sales exemption under the statutory definition of “sale,” 29 U.S.C. § 203(k) (“any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.”). But detailers could not sell the products or effect any change in their legal status or in the relationship between the company and the doctors. At most, they could obtain an oxymoronic “nonbinding commitment” from doctors to prescribe the drug where medically appropriate—often little more than a meaningless nod to get the detailer out the door. The Court, per Alito, acknowledged much of this but held that detailers still came within the exemption because their activities were close enough to a sale and the most that they could do to facilitate a sale eventually made by others. (Several steps down the chain, a wholesaler, distributor, or pharmacy would place an order with the company)
Similarly, in Encino Motorcars v. Navarro, 138 S. Ct. 1134 (2018), the Court considered the exemption status of service advisors at an auto dealership. In relevant part, the applicable exemption covered any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles…” 29 U.S.C. § 213(b)(10)(A). The most natural reading of this language includes (i) employees who sell automobiles (salespeople) and (ii) employees who service them (e.g. mechanics). The workers at issue did neither, providing advice to customers on servicing options. At best, they came within a clear gap in the statute. Nevertheless, the Court, per Thomas, determined that the employees sold services and serviced customers, that they were “integral” to the servicing process, and that this was good enough.
The majority in Encino Motorcars purported to apply a textualist “fair reading”—in place of the traditional narrow one—but its analysis is anything but. In neither Christopher nor Encino Motorcars did the Court defer to Congress to clean up possible lacunae in the statute. Rather the Court stepped in to declare workers who came outside of the plain language of the exemption—or, generously, on its borders—exempt and ineligible for overtime because it looked or felt to the majority that they should be included.
So what is the difference, for the conservative wing of the Court, between cases such as Christopher and Encino Motorcars on the one hand and Duguid on the other? Why did it shift its vote? Or did it?
We would argue, based on the Court’s oft-noted big business agenda, that the distinction is in where the corporate interests lay, and that the conservative majority stayed true to those interests. It was more than willing to hold firm to the statutory text when doing so would advance Facebook’s cause and deny relief to consumers. But it proceeded to twist the language of the FLSA to its liking and declare “close enough” to be good enough when the rights of workers were at stake. A key pharmaceutical industry trope which appeared to hold sway in Christopher was that deeming representatives eligible for overtime—in accordance with the plain words of the statute—would result in “massive retroactive liability.”
What then about Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020), a self-avowedly textualist decision with a “liberal” policy outcome? The natural ordinary meaning of Title VII’s prohibition on discrimination “because of… sex” may have been too self-evident for Justice Gorsuch (and Justice Roberts) to escape. At a more cynical level, one may maintain that the ruling aligns with corporate—though not social conservative—objectives. After all, in 2020, mainstream big business and the Chamber of Commerce were fully on board with and advocating for employment protections for LGBT individuals. As it is said: “Nothing is more powerful than an idea whose time has come.” These justices could follow the bounds of textualism and do the right thing without going against the Chamber and its constituents.
In sum, textualism does not always lead to a clear, objective outcome—or at least one that will be fearlessly pursued no matter where it leads. The textualist philosophy may be manipulated based on the predilections of its proponents and to achieve a preferred result. We would suggest that this is exactly what happened in Encino Motorcars and Christopher, and is likely to recur when everyone ascribes to textualism but some are unwilling to play by its rules.
 Under the textualist mantra, the Court also upset approximately 80 years of black-letter precedent that exemptions to the FLSA’s minimum wage and overtime requirements are to be construed narrowly. See, e.g., https://www.scotusblog.com/2018/08/empirical-scotus-the-big-business-court/; https://www.theusconstitution.org/think_tank/a-banner-year-for-business-as-the-supreme-courts-conservative-majority-is-restored/ See, e.g., id. at 1737 (Introduction: “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”)