As you (should have) already heard by now, Trump has nominated the Hon. Amy Cony Barrett for the U.S. Supreme Court to fill the seat vacated in the wake of Justice Ginsburg’s passing.

Judge Barrett is currently on the United States Court of Appeals for the Seventh Circuit, where she has already had the opportunity to rule on one critical TCPA ATDS case– Gadelhak v. AT&T Services, No. 19-1738 (7^th Cir. Feb. 19, 2020). 

In Gadelhak Judge Barrett–writing for the Court–found that the the TCPA’s ATDS definition covers only equipment that utilizes a random or sequential number generator to produce numbers to be called, either immediately or from storage. The effect of this ruling is to dramatically limit the applicability of the TCPA in private lawsuits against so called robocallers. Our analysis of the ruling can be found here: https://tcpaworld.com/2020/02/19/seventh-circuit-joins-the-party-another-circuit-rejects-marks-and-holds-a-random-or-sequential-number-generator-is-required-for-a-system-to-be-an-atds/

As I wrote last week, while it is impossible to know for sure, it seems likely Justice Ginsburg would have favored a broader reading of the TCPA’s ATDS definition in favor of private lawsuits designed to thwart unwanted calls–just as she did in the Supreme Court’s earlier decision in Mims. 

Should Justice Barrett eventually replace Justice Ginsburg on the Supreme bench, therefore, callers will likely gain an ally in the pending SCOTUS review of the TCPA’s ATDS definition in Facebook in the form of a Judge (or Justice) that has already delivered a critical ruling narrowly reading the TCPA.

The timing here should work out as well–Trump and Senate Republicans have vowed to see Judge Barrett elevated before the election, which means she should be available to help preside over oral argument in Facebook set on December 8, 2020.

And while the rules require a Supreme Court justice to recuse themselves from an appeal in a case they presided over below, there does not appear to be anything in the rules that would require Justice Barrett from participating in the Facebook appeal, should she so choose.  The legal issue to be determined in Facebook is certainly the same as the issue determined by Judge Barrett in Gadelhak, but the two cases are not technically related.

We’ll keep an eye on developments with Judge Barrett’s nomination from a TCPA perspective.