Footnote 12 and Retroactive Liability

An important point on judicial retroactivity buried in a footnote of Justice Kavanaugh's opinion in Barr v. AAPC.

As Jonathan and others have noted, the plurality opinion in Barr v. AAPC has a lot of interesting severability analysis. It also contains a very important, if unexplained, footnote, after the plurality concludes that the government-debt exception is unconstitutional:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. See Reply Brief 24. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

This conclusion is perfectly logical, but its legal basis is a bit mysterious to me. (Page 24 of the government's reply brief, the only authority cited, says: "It is doubtful that a person who made automated calls to collect government-backed debts before the exception was held invalid could be said to have violated the TCPA. But because no question of retroactive liability is presented here, those issues may be reserved for a future case.")

So what gives? Judicial decisions are inherently retroactive, because they are supposed to declare what the law is, not change it into something else. (The Court wrestled with special cases of prospective judicial decision making a few decades ago, but then abandoned it as a mess.) Lower courts have recognized a "good faith" defense when people relied on a statute or precedent that was later invalidated, but the Supreme Court has not decided that issue.

So it seems to me that those who joined this part of the plurality opinion (Justice Kavanaugh, the Chief Justice, and Justice Alito) must either want to experiment again with prospective-only judicial decisionmaking, or they must believe that the Court should recognize a new good faith defense after all.

Either way, the footnote has implications for the lawsuits brought against labor unions to recover agency fees paid prior to the Supreme Court's decision invalidating those fees in Janus. As I've written, both on this blog and in this article co-authored with Eugene, those lawsuits seemed surprisingly plausible if they ever made it to the Supreme Court. That no longer seems true. It's hard to imagine all of the Justices who joined footnote 12 intending to endorse liability in a pre-Janus case.