The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Alito Pokes Justice Sotomayor Over Canons of Construction in Facebook v. Duguid
Justice Alito also asks for corpus linguistics research on canons of construction.
Today the Supreme Court decided Facebook v. Duguid. This case presents a question of statutory interpretation. Section 227(a)(1) of the Telephone Consumer Protection Act of 1991 (TCPA) provides this definition of an autodialer:
equipment which has the capacity--
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.
Justice Sotomayor wrote the majority opinion for the Court. She framed the issue this way:
Facebook argues the clause "using a random or sequential number generator" modifies both verbs that precede it("store" and "produce"), while Duguid contends it modifies only the closest one ("produce"). We conclude that the clause modifies both, specifying how the equipment must either "store" or "produce" telephone numbers. Because Facebook's notification system neither stores nor produces numbers "using a random or sequential number generator," it is not an autodialer.
Justice Sotomayor begins by citing Justice Scalia's book with Bryan Garner. She discusses the series-qualifier canon:
Congress defined an autodialer in terms of what it must do ("store or produce telephonenumbers to be called") and how it must do it ("using a random or sequential number generator"). The definition uses a familiar structure: a list of verbs followed by a modifying clause. Under conventional rules of grammar, "[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series," a modifier at the end of the list "normally applies to the entire series." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (Scalia & Garner) (quotation modified).The Court often applies this interpretative rule, usually referred to as the "series-qualifier canon."
And the Court applies the "series-qualifier" canon to the Section 227(a)(1) of the TCPA:
Here, the series-qualifier canon recommends qualifying both antecedent verbs, "store" and "produce," with the phrase "using a random or sequential number generator." That recommendation produces the most natural construction, as confirmed by other aspects of §227(a)(1)(A)'s text.
Justice Alito only concurred in judgment. He agreed with the Court's reading of the statute. But he poked Justice Sotomayor about the serial-qualifier canon:
I write separately to address the Court's heavy reliance on one of the canons of interpretation that have come to play a prominent role in our statutory interpretation cases. Cataloged in a treatise written by our former colleague Antonin Scalia and Bryan A. Garner, counsel for respondents in this case, these canons are useful tools, but it is important to keep their limitations in mind. This may be especially true with respect to the particular canon at issue here, the "series-qualifier" canon.
Justice Alito notes that the use of this canon is limited. Indeed, he favorably cites Will Baude and Steve Sachs, who were skeptical of the "series-qualifier" canon:
As set out in Reading Law 147, this canon also applies when the modifier precedes the series of verbs or nouns. Some scholars have claimed that "nobody proposed [the series-qualifier] canon until Justice Scalia pioneered it" in Reading Law. Baude & Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1125 (2017)
Justice Alito casts some doubt about whether Facebook's reliance on the series-qualifier canon "generally reflects the most natural reading of a sentence." Instead, Justice Alito would temper this canon with the "common understanding" of a phrase. This argument resemble Justice Alito's approach to textualism in Bostock.
Next, Justice Alito urges corpus linguistics scholars to investigate the "strength and validity" of canons:
The strength and validity of an interpretive canon is an empirical question, and perhaps someday it will be possible to evaluate these canons by conducting what is called a corpus linguistics analysis, that is, an analysis of how particular combinations of words are used in a vast database of English prose. See generally Lee & Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788 (2018). If the series-qualifier canon were analyzed in this way, I suspect we would find that series qualifiers sometimes modify all the nouns or verbs in a list and sometimes modify just the last noun or verb. It would be interesting to see if the percentage of sentences in the first category is high enough to justify the canon. But no matter how the sentences with the relevant structure broke down, it would be surprising if "the sense of the matter" did not readily reveal the meaning in the great majority of cases.
I hope scholars take up Justice Alito's assignment. And they can even use "homework-help websites" like COFEA!
Finally, Justice Alito casts some doubt on this, and other canons:
To the extent that interpretive canons accurately describe how the English language is generally used, they are useful tools. But they are not inflexible rules. Appellate judges spend virtually every working hour speaking, listening to, reading, or writing English prose. Statutes are written in English prose, and interpretation is not a technical exercise to be carried out by mechanically applying a set of arcane rules. Canons of interpretation can help in figuring out the meaning of troublesome statutory language, but if they are treated like rigid rules, they can lead us astray. When this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way.
I suspect this case suffered from the Bostock hangover.
Justice Sotomayor responds to Justice Alito in a footnote:
Linguistic canons are tools of statutory interpretation whose usefulness depends on the particular statutory text and context at issue. That may be all JUSTICE ALITO seeks to prove with his discussion and list of "sentences that clearly go against the canon," post, at 3. (That the grammatical structure of every example he provides is materially dissimilar from that of the clause at issue in this case proves the point.) But to the extent that he suggests that such canons have no role to play in statutory interpretation, or that resolving difficult interpretive questions is a simple matter of applying the "common understanding" of those "familiar with the English language," post, at 2–3, we disagree. Difficult ambiguities in statutory text will inevitably arise, despite the best efforts of legislators writing in "English prose," post, at 4. Courts should approach these interpretive problems methodically, using traditional tools of statutory interpretation, in order to confirm their assumptions about the "common understanding" of words.
I'm surprised that Justice Thomas joined this footnote.
One final note. Bryan Garner argued this case. He lost, unanimously. And the Court rejected Garner's argument based on the "rule of the last antecedent" and the "distributive canon." Yet, the Court and the concurrence cited Garner's writings with Justice Scalia to support the opposite side. Paul Clement, a former Scalia clerk, notched another unanimous victory.
