Gorsuch’s first opinion: Blame definitions, not practice – National Consumers League

Written by NCL Intern Sierra Hatfield

Justice Neil Gorsuch’s first Supreme Court opinion in Henson v. Santander illustrates the inability of the current Court to protect the changing needs and liberties of the American people. Gorsuch’s opinion not only fails to interpret what Congress was trying to stop, but in doing so, it has provided countless companies the legal opportunity to harass debtors.

The complaint in Henson v. Santander alleges that Santander, a Spanish bank, bought defaulted loans from CitiFinancial Auto and then attempted to collect on those loans in a manner that violated the Fair Debt Collection Practices Act (FDCPA) of 1977. Santander was accused of harassing and intimidating the debtors, leading to a lawsuit. But Santander argued that it is excluded from the FDCPA because it bought the debts and was collecting for itself – not a third party.

What will come to be known as the “Santander defense” is found in the loophole Gorsuch has now written into precedent. That loophole was created out of the Court’s interpretation of the definition of “debt collector,” which, according to the FDCPA, is a term including anyone who “regularly collects or attempts to collect…debts owed or due…another.”  Santander’s defense states that because it is collecting money for itself and not for “another,” they are not “debt collectors” and therefore exempt. Apparently, the Court agrees, even though Santander is deploying the same forms of harassment that are prohibited by the FDCPA.

But when Congress wrote this definition forty years ago, there was not a multibillion-dollar industry created by debt buyers like Santander. These entities purchase defaulted debt for almost nothing and then harass the debtors for money. According to the Supreme Court, the question is not whether these entities are unlawfully badgering people for money, but who they serve while doing so. If they are collecting for themselves, it’s fine – but if it’s for someone else, “that’s just taking it too far.”

The Court focuses on three major principles in its ruling: definition of a debt collector, Congress’ role in law, and grammar. We will focus on the first two.

The statutory definition of a debt collector is much longer than the Court would have you believe, with several commas and clauses. But even with the simplified version the Court provided us, we should be asking ourselves – why do they spend so much time on the words “debts owed or due…another” while ignoring the words “regularly collects or attempts to collect”? Gorsuch writes in his opinion that it is the fault of the parties involved for not raising the issue more robustly. But by doing so, the Court has ignored the purpose of the FDCPA and consequently failed to protect consumers from debt buyers and more.

Gorsuch’s first words read, “Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry.”  This opening is comical. Gorsuch admits that Congress’s purpose in writing the FDCPA was to protect debtors from harassment that is commonplace with debt collectors. But instead of arguing the intent of the law – which would militate strongly against Santander’s practices – the Court hides behind definitions.

There are several ways to interpret a law. Gorsuch is a so-called “textualist”, as illustrated by his adherence to statutory text. But I argue that a better way of looking at this law would have been through the lens of a “living document.” This is a common approach to the U.S. Constitution. When viewing the Constitution as a living document, it has the ability to change and adapt to modern practices.

Gorsuch’s response to this would be that it is not the Supreme Court’s job to amend laws by Congress. It is Congress’s job to create and amend, and it is the Court’s job to interpret and apply. But when such a strong focus is placed on one clause that favors his interpretation of the statute, and not another, which would favor consumers, one can’t help but feel as though some cherry picking occurred.

The fatal flaw in Gorsuch’ arguments – typical of conservative jurists – is to ask Congress to step in and correct the Court’s interpretation. Well, he knows that this Congress won’t take those steps. And thus his decision will stand and consumers will be the for worse for it, especially lower income consumers who bear the brunt of these rapacious debt collection agencies and their employees disrupting people day and night, even those who may have had their debts legally discharged.

But even so, all the blame cannot be placed on Gorsuch. He is the author of an opinion to which the other Justices unfortunately agreed was a correct interpretation of the law. NCL is disappointed that the Supreme Court is now allowing consumers to be subjected to debt collection practices that were once illegal, and we join our consumer advocacy colleagues, several of whom filed Amicus Curiae briefs, in disagreeing mightily with this very unfortunate outcome