Monday, July 6, 2020
Today the Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc., holding that the government-debt exception to the TCPA’s prohibition on robocalls to cell phones violated the First Amendment. The Court was sharply divided, as the breakdown indicates:
KAVANAUGH, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.
The lack of a majority opinion will surely be of interest to Marks-rule enthusiasts. Readers may also be interested in the Justices’ severability analysis. Seven Justices (Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan & Kavanaugh) conclude that the unconstitutional government-debt exception is severable from the rest of the TCPA. Gorsuch’s opinion, joined by Thomas, disagrees: “Respectfully, if this is what modern ‘severability doctrine’ has become, it seems to me all the more reason to reconsider our course.”