Supreme Court 2016 Statutory Term in Review: A Postscript on Why the Majority Joined Breyer's Opinion in Midland

Several serious Court-watchers have written to me to suggest that Chief Justice Roberts and Justices Alito, Thomas, and maybe Kennedy likely joined Justice Breyer's opinion in Midland Funding not because they agreed with its purposivist rationale, but because Justice Breyer was the swing vote and assent to his reasoning was necessary to avoid a fractured opinion or even a 4-4 split.  I don't think I actually quite said that those Justices bought Justice Breyer's reasoning, and I'm not sure how much it matters if they did.  However, I'll briefly lay out what can be garnered from the argument transcript as to the concurring Justices' reasoning, offer some speculation about how likely it is that the concurring Justices were compelled to join Breyer's opinion in full or to let him say what he wanted to say, and then offer a comment on how much it matters if Breyer's reasoning was really just personal to Breyer.

First, as to Chief Justice Roberts, an estimable and adroit statutory interpreter who I view, after cases like Bond and Burwell, as more of a scion of the Legal Process School than a textualist (though he can trade textual arguments with anyone), the oral argument certainly reveals that he had some concerns with basing FDCPA claims on a theory that a creditor's claim was barred by an affirmative defense.  This is the ground my correspondents speculate the concurring Justices had for joining Breyer's opinion; indeed, they suspect that outside of Breyer, the majority would be happy to hold that suits in state court on stale debts aren't unfair or unconscionable means of debt collection.  However, I think it's also pretty clear that Roberts shared Breyer's purposivist concern with FDCPA litigation in district court, given that at one point he contrasted FDCPA suits on time-barred bankruptcy claims with FDCPA suits on time-barred debt-collection actions, remarking:

Well, bankruptcy is very different.  The whole idea is let's get everything here in one place and -- and deal with it, you know, and different priorities and all of that.  I think it's much more significant if you have things spinning out of the bankruptcy estate being adjudicated elsewhere than the fact that you might have it as a general matter in -- in district courts.

Note that this is, for better or worse, an extremely purposivist/pragmatic concern.  The claim is that, assuming that FDCPA suits about time-barred bankruptcy claims would be "adjudicated elsewhere" than bankruptcy court, deeming a time-barred bankruptcy claim to be unfair or unconscionable under the FDCPA would defeat bankruptcy's "whole idea" of "getting everything here in one place," no matter how unfair or unconscionable it might be to sue on time-barred debts generally.  This concern has nothing to do with (a) the language of the statute or (b) the purposes of the FDCPA.  Rather, the argument would gerrymander out a set of unfair/unconscionable means of debt collection in order to maximally pursue a purpose of the Bankruptcy Code, though it's far from obvious that a purpose of bankruptcy is getting all the debtor's bankruptcy-related causes of action in one place, as opposed to his debts (and, as I said in my post, bankruptcy-jurisdictional statutes already largely do that).  Interestingly, Roberts's concern isn't even Breyer's more limited and pragmatic, if mistaken concern that district courts would struggle to adjudicate bankruptcy-related issues if bankruptcy-related FDCPA actions were allowed to be brought in district court; his concern is the more purposive one of fulfilling bankruptcy's goal of getting "everything here in one place," regardless of the content of the "everything."

Justice Alito, in argument, doubted that chapter 13 trustees lacked the time to or interest in objecting to stale claims; I believe he's the only Justice who voiced such doubts, which tends to confirm my sense that the opinion's doubts on this score had little to do with the Court's decision.  Justice Alito also, at one critical juncture, expressed skepticism with basing FDCPA claims on a creditor's failure to honor an affirmative defense.  Justice Kennedy's questions were all of this latter genre, and Justice Thomas didn't speak.

I think, then, that the Midland Funding majority was likely an overlapping consensus of Justices that thought filing a proof of claim on a time-barred debt wasn't textually unfair, and at least two Justices (not coincidentally, the majority's two most purposivist Justices) that had strong purposivist and pragmatic concerns about allowing FDCPA suits on bankruptcy claims to be brought in district court.  Was it necessary to let Breyer discuss those concerns in his opinion to avoid a fractured decision?  I'm not so sure of that, for the following reasons. 

It strikes me that a compromise could have been forged, if anyone cared enough to forge it, that would focus on staleness particularly being an affirmative defense in bankruptcy, where a claim is "deemed allowed" absent objection, without deciding whether a time-barred debt-collection suit violates the FDCPA, and without talking about Breyer's and Roberts's concerns of bankruptcy-related litigation in district court.  The opinion already does talk about affirmative defenses to a large extent, so we're talking about a cut rather than a complete reorientation.  And it's not at all clear to me that Breyer would have vigorously fought the cut; his discussion of bankruptcy-related litigation in district court is already rather muted relative to his discussion at oral argument.  At worst, I believe that Breyer would have been willing to fully concur in an affirmative-defense-focused opinion, as he already wrote one that places considerable reliance on that rationale, while writing a separate concurring opinion of his own raising his concerns.  So my best guess is that the other members of the majority didn't feel compelled to acquiesce to that discussion, but simply didn't find it that offensive.

How much does it matter if the majority silently objected to Breyer's (and Roberts's) purposivist reasoning?  It could matter a lot; if it's the case that such reasoning only enters a majority opinion of the Court when the swing vote in a case happens to be a purposivist Justice, all an opinion like Midland Funding shows is that we have one or two purposivist Justices who occasionally play pivotal roles, which is hardly new news.  The direction of the law remains, one might argue, a strongly textualist one.  A few responses to that.  

First, besides that I simply don't think it's true that the law's direction is strongly textualist in light of cases like Bond, Burwell and Yates, the direction of the law isn't solely or really even mostly the Supreme Court's direction, and opinions like Midland Funding influence lower courts.  For example, a bankruptcy judge reading Midland Funding will likely take it as a signal that the Supreme Court doesn't want the FDCPA to muck up the Bankruptcy Code's remedies for creditor misconduct generally, not just in the case of claims on time-barred debts, and will carry that sort of pragmatic anti-mucking-up reasoning with her into other interpretive situations, as she's seen that the Supreme Court reasons this way.

Second, we are very possibly (probably?) headed into a world where Justice Breyer and the Chief Justice are swing votes in most close cases, so I think their fairly unreconstructed purposivism is a pretty big deal.

Third, the fact that such purposivist reasoning slips into majority opinions without objection, when, I speculate, it could have been removed or led to a reassignment upon an objection, is at least suggestive of purposivist reasoning's continuing broad acceptability, even if relatively few of the Justices practice it themselves.