Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Justice Alito on Criminal Procedure

Hon. Andrew S. Oldham[*]

      Justice Alito’s criminal procedure jurisprudence reflects a commitment to administrable “rules” instead of fuzzy, hard-to-apply “standards.”[2] Criminal procedure rules allow the relevant actors to understand the law and conform their actions to it. Rules are also easier for inferior-court judges to apply. Standards, in contrast, often obscure rather than answer the hardest questions. They can leave police, prosecutors, citizens, and judges with little idea of what the law really requires.[3] Justice Alito’s criminal procedure decisions thus evoke his late colleague’s mantra that “the rule of law is the law of rules.”[4]

But only to a point. Taken to its extreme, a rules-focused approach can devolve into a heady exercise in hyperformalism, entirely disconnected from the real world. And Justice Alito often reminds us that law has no meaningful purpose when it stops comporting with the reality of everyday life.[5] For Justice Alito, that’s as true in criminal procedure as it is in other areas of law.[6]

This chapter considers two hallmarks of Justice Alito’s criminal procedure jurisprudence. First, it explains Justice Alito’s understanding of where the criminal procedure rubber hits the real-world road. Call it pragmatism; call it common sense; call it practicality. Whatever you call it, Justice Alito’s criminal procedure decisions evince an unflagging concern for how any given precedent will affect ordinary people making everyday decisions. Second, it explains how Justice Alito’s focus on real-world consequences affects his approach to reconsidering precedents and setting new ones.

I.               Criminal Procedure Pragmatism

To unpack Justice Alito’s understanding of criminal procedure rules and pragmatics, let’s begin with the Fifth Amendment. The Court has long held that the Fifth Amendment’s right against self-incrimination bars involuntary confessions.[7] Until 1966, the Court’s approach to that question turned on a fact-specific evaluation of the circumstances surrounding the defendant’s confession.

That approach, however useful in individual cases, had a weakness: It was fundamentally a standard, and it did very little to establish a legal rule for future cases. And that meant courts (and everyone else) had a hard time drawing lines between voluntary and involuntary confessions. Was the suspect intelligent? Was he sick at the time of the interview? Was he well-educated? Had he had prior police run-ins? &c.[8]

Partially because the voluntariness inquiry was so hard for everyone to apply, the Court fashioned a “prophylactic rule” in Miranda v. Arizona.[9] A prophylactic rule is a way of protecting an underlying constitutional guarantee by imposing extra-constitutional requirements on the relevant set of actors.[10] The underlying guarantee in Miranda was (mainly) the Fifth Amendment’s ban on involuntary confessions. The extra-constitutional requirements were Miranda’s judge-made procedural rules—for example, the requirement to inform a suspect of his right to remain silent before interrogating him. And the relevant actors were, of course, police interrogators. If the police break the Miranda rules—and they really are rules, not standards[11]—then the resulting confession is almost always inadmissible.

As with so many criminal procedure doctrines, however, Miranda shifted (rather than settled) the rules-versus-standards question. Specifically, after Miranda, the question became: When must police administer the prophylactic warnings? At one level, the answer is easy. Miranda’s safeguards apply to suspects who are in custody. But when is someone in custody? Well, if the police have formally arrested someone, that, too, is easy. But even without a formal arrest, if police have created a “restraint on freedom of movement of the degree associated with” an arrest, then the suspect is likewise in custody.[12]

At least initially, the Court’s custody cases turned on objective factors. The relevant question was, essentially, whether a “reasonable man” in the suspect’s shoes would consider himself free to end his interaction with the police and go on his way.[13] The officer’s and suspect’s subjective thoughts, beliefs, and feelings were simply irrelevant.

That brings us to J.D.B. v. North Carolina.[14] In coordination with school administrators, a police officer had pulled a 13-year-old from class and talked with him in a school conference room.[15] Without giving Miranda warnings, the officer asked the student about a couple of home break-ins.[16] The student confessed to the break-ins, and he eventually admitted to the crimes in juvenile court.[17] The key question was whether the student had been in custody when he confessed.

The Court didn’t actually answer that question, but it held the North Carolina Supreme Court had erred by applying the ordinary, objective “custody” test without accounting for the student’s age.[18] The majority emphasized that disregarding a suspect’s age in the custody analysis would result in significant inaccuracies: As a matter of common sense, a child is likely more susceptible to implied coercion than an otherwise-similar adult would be.[19] Therefore, the majority “h[e]ld that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer,” it must be part of the custody analysis.[20]

Justice Alito’s dissent, joined by three other Justices, countered that the Court was ignoring Miranda’s prophylactic nature.[21] Remember that Miranda replaced a system that asked only whether a particular confession was, as a matter of actual fact, “voluntary.”[22] And whatever its faults, Miranda’s chief virtue is that it’s a rule everyone, especially the police, can understand and apply.[23]

The Court’s decision muddied the gateway custody question by taking into account the suspect’s age—not always an easy thing to quickly and reliably ascertain in the course of routine policing. And that was a step toward “undermin[ing] the very rationale for the Miranda regime.”[24] Further, Justice Alito explained, the majority’s rule will “generate time-consuming satellite litigation over a reasonable officer’s perceptions” of a suspect’s youthfulness. And it’s impossible to understand why a suspect’s youth could be relevant to the custody analysis while other characteristics—including intelligence, education, occupation, prior experience with law enforcement, mental health, &c.—unquestionably are not. And more fundamentally, the entire thrust of Miranda—and especially of the (formerly) purely objective “custody” test—is to lay down an administrable rule. If accuracy was the sole concern, after all, we’d be right back to the totality-of-the-circumstances voluntariness inquiry. In short, Justice Alito’s J.D.B. dissent was based on the principle that there aren’t any perfectly accurate rule-solutions to problems of criminal procedure. Insofar as the Court wants a rule, and a prophylactic one at that, good-enough answers sometimes must suffice.

Justice Alito’s plurality opinion in Salinas v. Texas,[25] another Fifth Amendment case, was rooted in similar concerns. The suspect in that case (who was undisputedly not in custody at the time) had voluntarily talked with a police officer who was investigating a double murder.[26] He willingly answered the officer’s questions—until the officer asked “whether his shotgun would match the shells recovered at the scene of the murder.”[27] Rather than answer, the suspect clammed up, “looked down at the floor, shuffled his feet,” and showed other signs of nervousness.[28]

The question was whether the prosecution had violated the Fifth Amendment’s guarantee against self-incrimination by arguing at trial that the defendant’s reaction suggested guilt. The plurality opinion said no, and the reason was simple. The well-established rule says a suspect not in custody must affirmatively invoke his right against self-incrimination—merely remaining quiet isn’t good enough.[29] There are a few exceptions to that rule.[30] But none applied here. Full stop.

Justice Breyer’s dissent urged a more fact-sensitive approach—surely it would be wise to consider “the circumstances of the particular case” to determine whether a suspect implicitly invoked the right.[31] But Justice Alito disagreed. Why depart from existing precedents in a way that will leave police officers and suspects without concrete guidance in any given case? And even in court, Justice Breyer’s standards-focused approach would create difficult “line-drawing problems” harmful to the rule of law.[32] Far better to stick with the usual rule and apply it straightforwardly to the case at hand.

These cases are only a sampling.[33] Nevertheless, they illustrate Justice Alito’s preference for rules over standards, and they reflect a deep appreciation of the workaday issues that face lower-court judges, prosecutors, and police. Those individuals face enough difficult, thorny problems as it is. The least judges can do is explain the rules of the game clearly and in plain English.

But as much as Justice Alito appreciates clear rules of the game, he also understands the playing field—both factual and legal—in any given case. And he often uses that knowledge in an effort to prevent the Court from making doctrinal messes.

A series of cases about the Federal Sentencing Guidelines illustrates this strand of Justice Alito’s jurisprudence. The basic point of the Guidelines was to create “a system that diminishes sentencing disparit[ies]” among similarly situated offenders.[34] In United States v. Booker, just before Justice Alito joined the Court, the Court held that Congress had violated the Sixth Amendment’s guarantee of trial by jury by making the Guidelines mandatory on sentencing courts.[35] The Booker Court “excise[d]” the offending statutory provisions in an attempt to fix the problem without totally undermining the Guidelines’ goal of uniform sentencing.[36] The result: The Guidelines remain, but they’re no longer mandatory on sentencing courts.

Gall v. United States[37] came two years later. The Court had to decide, in essence, how much flexibility a post-Booker district judge has to depart from the Guidelines when imposing a sentence.[38] The Court held that sentences get reviewed only under the highly deferential abuse-of-discretion standard—and it imposed little-to-no obligation on district judges to give serious weight to the Guidelines.[39]

Justice Alito’s dissent contended that the majority was unduly sapping all the Guidelines’ vitality. In his view, “a district court must give the policy decisions that are embodied in the Sentencing Guidelines at least some significant weight in making a sentencing decision.”[40]

Justice Alito began by pointing out that Booker was ambiguous: It clearly held that the Guidelines were only “advisory,” but it hedged about whether courts have much of an obligation to consider them on the way to sentencing decisions. And Justice Alito emphasized the fundamental principle of the Guidelines: Sentencing judges had been exercising too much discretion, and Congress attempted to remove that discretion entirely.[41]

But this is where Justice Alito’s vast understanding of criminal procedure came into play. He accounted for something six of the other Justices apparently did not: Booker was a decision about the Sixth Amendment jury right.[42] That means Booker justifies undoing Congress’s discretion-eliminating choice only to the extent Congress’s choice conflicts with the Sixth Amendment. Thus, Justice Alito concluded, the only permissible approach is to read the ambiguous Booker opinion narrowly: Booker held the Guidelines aren’t mandatory, but it didn’t hold the Guidelines have no force whatsoever. And it certainly didn’t hold that “sentencing judges need only give lipservice” to them, in Justice Alito’s words.[43]

This is the kind of insight that appears obvious when you say it out loud. Yet Justice Alito was the only one to point it out at the time. And he noticed the issue because he understood how the Constitution, the statute, the Court’s doctrine, and the trial-level sentencing system fit together.[44] In a series of related cases following Gall, Justice Alito continued making this point—often, but not always, as a lone voice crying out in the wilderness.[45]

Or take the Sixth Amendment’s Confrontation Clause, which guarantees a defendant’s right “to be confronted with the witnesses against him.”[46] Justice Alito wrote the plurality opinion in Williams v. Illinois,[47] which implicated the Confrontation Clause’s application to expert testimony and DNA evidence. Justice Alito first concluded that the Clause doesn’t “bar an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify.”[48] And second, he explained that the Clause allows prosecutors to introduce expert-produced DNA evidence.[49]

Because the decision was so badly splintered—with four opinions total—Justice Alito’s reasoning for the plurality didn’t become binding precedent.[50] But that doesn’t make it unimportant. To the contrary, it fended off the dissenters from expanding the Clause’s scope. Williams thus illustrates that a non-precedent is sometimes better than a bad one.[51]

The dissent’s approach sounded mainly in formalism and originalism. The dissenters advocated for a significant expansion of Crawford v. Washington,[52] an opinion written by Justice Scalia which itself expanded the Court’s existing Confrontation-Clause precedents on purportedly originalist grounds.[53] In response, Justice Alito put on his own formalist and originalist tour de force, countering the dissent point-by-point.

But he also displayed a canny sense for the practical realities of expert testimony and DNA testing. Right up top, he noted that “[i]f DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable.”[54] And when the dissent faulted the plurality for allowing abusive expert testimony, Justice Alito pointed to an interlocking web of existing “safeguards to prevent such abuses.”[55] When Justice Thomas and the dissent each appealed to history, Justice Alito countered that they were overlooking the way DNA testing actually works: A team of technicians follows established procedures, with no incentive to reach “anything other than [] scientifically sound and reliable” results, and without any clue whether a given result will incriminate or exonerate any particular individual.[56] In sum, history matters, but so does context: “[T]he use at trial of a DNA report prepared by a modern, accredited laboratory bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.”[57]

Justice Alito has employed a similar approach in other areas. In one Fourth Amendment case, he criticized the Court for giving an “arbitrary” answer to “a question not really presented by the facts in this case.”[58] In another, he pointed to the Court’s refusal to apply “nearly a century[’s]” worth of precedents and its decision to invent a new rule instead.[59] In the Fifth-Amendment context, he’s attempted to mitigate (what he sees as) majority-created doctrinal messes by urging lower courts to apply existing precedents as narrowly as possible in the future.[60] And in another Sixth Amendment case, he used his knowledge of trial procedure as a way to limit the scope of the Court’s holding.[61] The common refrain is that each case has its nuances, and it’s worthwhile to take the time to understand them. Why change the law when attending to the facts is enough?

II.             Criminal Procedure Modesty

A second hallmark of Justice Alito’s criminal procedure jurisprudence is its modesty. Thus, for example, he is often reluctant to overturn precedent. But Justice Alito’s modesty does not stop there. Judicial innovation—even when consistent with existing precedent—often raises more questions than it answers, rendering the law less clear. And each innovation complicates an already intricate mosaic of criminal procedure doctrine. In an area where proposals for groundbreaking shifts abound—among lawyers and jurists of all persuasions—Justice Alito’s opinions consistently argue for a cautious approach to legal change.

Let’s start with Justice Alito’s deference to precedent (or stare decisis[62]). Two of his dissenting opinions—one shortly after his elevation to the Supreme Court and one closer to the time of this writing—provide useful guideposts.

The first case is Arizona v. Gant,[63] decided during Justice Alito’s third full term on the Court. The case involved a recurring question: When police arrest an occupant or recent occupant of a vehicle, may they search the vehicle without a warrant?[64] In the 1981 decision of New York v. Belton, the Court had held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”[65]

The Belton decision had been widely understood to permit police officers, pursuant to a lawful arrest, to secure arrestees (e.g., in the back of a patrol car) and then search the passenger compartment of their vehicles.[66] But the Gant majority changed course and narrowed the circumstances where warrantless vehicle searches are permissible. The Court held that police may search an arrestee’s vehicle only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; or (2) it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.[67]

Justice Alito vigorously dissented. He lamented that the majority’s novel, bipartite test “is virtually certain to confuse law enforcement officers and judges for some time to come.”[68] And he highlighted the perverse consequences that he believed would flow from the majority’s new rule. For example, he argued that Gant would often “endanger arresting officers” by making them choose between searching the car before securing the arrestee and losing the right to search the car at all.[69]

But the brunt of this dissent criticized the majority for departing from Belton’s rule without adequate justification. Here Justice Alito focused on the doctrine of stare decisis, which requires the Court to find “a special justification” to abandon a prior decision.[70] The Court is supposed to consider a number of factors in deciding whether a special justification exists, including reliance on the precedent, its workability, and whether it was badly reasoned.[71]

Justice Alito’s dissent gave particular attention to reliance interests. This was an important jurisprudential move because, prior to Gant, most Justices considered reliance relevant in cases involving property and contract rights—but not in cases involving “procedural and evidentiary rules.”[72] Justice Alito nonetheless identified substantial reliance reasons that, he argued, supported keeping the Belton rule. For example, he noted that police academies had been teaching the Belton rule to officers for more than a quarter century.[73] And given the relative frequency of vehicle-occupant arrests, numerous searches—some of which would be the subject of pending litigation when Gant was decided—had been conducted in reliance on the Court’s guidance in Belton.[74] The Court’s decision thus threatened to “cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law.”[75] And it would force thousands of law enforcement officers to unlearn an established rule and replace it with the Court’s new (and more complex) guidance.

Justice Alito’s stare decisis analysis, including his concerns about reliance interests, obviously did not persuade a majority in Gant. But Davis v. United States[76]—decided two years later—provides an interesting coda that arguably vindicates his view. Davis involved a vehicle search that took place in 2007, two years before Gant was decided. Because the officers searched the arrestee’s vehicle after securing him in a patrol car, the search would have been permissible under Belton but was unconstitutional under Gant. Justice Alito wrote for a six-Justice majority, holding that the exclusionary rule[77] did not apply to the fruits of the search. The Court also held, more broadly, that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.”[78] The Court’s reasoning was based on the premise that “suppression would do nothing to deter police misconduct in these circumstances, and . . . it would come at a high cost to both the truth and the public safety.”[79] So, while Justice Alito’s emphasis on reliance interests in Gant didn’t win him that battle, they contributed to victory in a different war—the war over applying the exclusionary rule to reasonable, good-faith searches.

Next consider Ramos v. Louisiana,[80] a 2020 case involving the Sixth Amendment right to trial by jury. Ramos overturned the 1972 case of Apodaca v. Oregon[81] and held that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a felony.[82] Justice Alito again dissented on stare decisis grounds. And he again emphasized reliance interests—though this time he focused on two States (Louisiana and Oregon), which were the only two that relied on Apodaca to allow non-unanimous jury verdicts.[83]

As Justice Alito explained: “What convinces me that Apodaca should be retained are the enormous reliance interests of Louisiana and Oregon.”[84] Perhaps most interestingly, he contrasted Ramos with other landmark Supreme Court decisions that overturned precedent, like Janus v. AFSCME,[85] arguing that the States’ reliance interests in Ramos far exceeded the reliance interests in cases like Janus. In so doing, Justice Alito again flipped the conventional wisdom—that reliance interests for stare decisis purposes are at their apex in the realm of contract and property—on its head. He forecasted a “tsunami” of litigation arising from the Ramos decision, requiring countless retrials and requiring the evaluation of endless jury-unanimity claims on both direct and collateral review.[86] And he suggested that avoiding these kinds of structural shocks to our criminal justice system should be a central tenet of stare decisis—even more so than protecting contract and property interests. For Justice Alito, then, stare decisis is first and foremost a tool to promote systemic stability and the public good, rather than a protection for individual stakeholders and a thumb on the scale for vested interests.

Although only articulated in dissent, Justice Alito’s view of stare decisis and reliance interests in the criminal procedure context has proved influential. For example, partially in response to Justice Alito, the Court later held that the Ramos rule didn’t apply retroactively to cases on collateral review.[87] And Justice Alito’s defense of stare decisis carried the day in Gamble v. United States,[88] where his majority opinion rejected a request to overturn the “separate sovereigns” doctrine that permits both a State and the federal government to try a defendant for the same crime without offending the Double Jeopardy Clause.[89]

Justice Alito’s modesty does not just counsel restraint in reconsidering precedent; it also counsels against broad judicial innovations in the absence of precedent. I should first explain what I mean by “judicial innovation.” Justice Scalia colorfully depicted the judicial penchant for innovation in his explanation of how the common law evolves. As he noted, common-law judicial doctrines tend to develop in a peculiar fashion, “rather like a Scrabble board.”[90] This is because, under the rule of stare decisis, it’s very hard to erase a prior decision, but it’s easy to add qualifications to it. Justice Scalia captured the attractiveness and the technique of judicial innovation as follows:

By judicial innovation, then, I mean adding another word (i.e., rule) to the Scrabble board of precedent instead of merely applying the words already on the board. In theory, ever since the landmark 1938 decision of Erie Railroad Company v. Tompkins,[92] federal courts have abjured common-law rulemaking except in a few narrow enclaves.[93] But the common-law mode of judging continues to have great appeal and influence in American jurisprudence, including in constitutional interpretation.[94] And the common-law methodology is particularly influential in the criminal procedure context, where the relevant constitutional commands—like no “unreasonable searches and seizures”[95]—leave ample room for elaboration.

Against this backdrop, many of Justice Alito’s opinions provide powerful critiques of judicial innovation. Take, for example, United States v. Jones.[96] There, the Court considered whether it was an “unreasonable search” under the Fourth Amendment to surreptitiously attach a GPS tracking device to a suspect’s vehicle without a warrant and to monitor the vehicle’s movements on public streets.[97] All nine Justices agreed that the search was unreasonable. But they forcefully disagreed about why.

Perhaps ironically, it was Justice Scalia—often the critic of judicial innovation in other contexts—who proposed the more innovative approach in Jones. The historical standard, based on the landmark 1967 case of Katz v. United States,[98] was that a search was unconstitutional if it violated a suspect’s “reasonable expectation of privacy.”[99] But Justice Scalia’s majority opinion declined to apply the Katz test, instead formulating an additional and separate rule that a warrantless trespass to a person’s house or chattels constitutes an unreasonable search if done to obtain information.[100]

Justice Alito concurred in the judgment. He argued the Court should have simply applied the Katz test, and he criticized the majority’s new approach as a “highly artificial” exercise “based on 18th-century tort law.”[101] Notably, he agreed that the Katz test has its flaws. For example, its reasoning is circular (a search is constitutionally “unreasonable” if it violates one’s “reasonable expectation of privacy”), it turns on judicial hindsight, and it is tainted by subjectivity.[102] Justice Alito nonetheless argued that, for all its faults, Katz was superior to the majority’s new qualification. The latter, he worried, would create substantial confusion and disruption in Fourth Amendment law. For example, since the majority’s new test was tied to the notion of “trespass” under state property law, would the Fourth Amendment’s protections now vary from State to State?[103] This and several other facets of the majority’s new inquiry would confuse the law until their eventual clarification in further cases.

At bottom, Jones was about how to apply the 1791 constitutional prohibition on “unreasonable searches” to a 2012 case involving new and advanced surveillance technology. Justice Alito thought it unwise for the Court to manufacture a new test to adapt the Fourth Amendment’s “reasonableness” standard to these changed circumstances. Instead, he argued that if legal innovation was appropriate, it should come from a legislative body, which “is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”[104]

Justice Alito has shown this same skepticism of judicial innovation in other criminal procedure cases. Florida v. Jardines,[105] for example, decided a year after Jones, asked whether it violated the Fourth Amendment to use a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home without a warrant.[106] The majority said yes, again expounding a trespass-based theory. Justice Alito again disagreed, urging that Katz (for all its faults) was better than judicial innovation.[107]

The blockbuster 2018 case of Carpenter v. United States[108] brought the Court’s longstanding differences over judicial innovation in constitutional criminal procedure to a head. The issue was whether the Government conducts a “search” for Fourth Amendment purposes when it accesses historical cell phone records (called “cell site location information” or “CSLI”) that provide information about the user’s past locations.[109] CSLI surveillance can be particularly comprehensive and invasive: In Carpenter itself, for example, the Government scrutinized the suspect’s movement over 127 days through 12,898 location points.[110] But existing Fourth Amendment doctrine did not support holding that CSLI surveillance constitutes a search, for two reasons. First, this kind of investigation involves subpoenaing records rather than actual, physical searching—and subpoenas are generally subject to less Fourth Amendment scrutiny (a point Chief Justice Roberts contests in dissent). Second, the Government searched property belonging to a third party—the cell phone company—rather than searching the suspect’s own property. The majority sidestepped these doctrinal obstacles and held that accessing CSLI constitutes a search.[111] It based its decision on “the unique nature of cell phone location information,” and noted that declining to extend Fourth Amendment protections to CSLI would permit “tireless and absolute surveillance” of anyone with a cell phone.[112]

Justice Alito dissented. Despite “shar[ing] the Court’s concern about the effect of new technology on personal privacy,” he thought it unwise to depart from established Fourth Amendment principles in order to adapt the doctrine to the threats posed by new technology.[113] And he reiterated and expanded on his concerns about the dangers of judicial innovation. Specifically, he predicted that the principles underlying Carpenter would require “all sorts of qualification and limitations that have not yet been discovered” in order to prevent a wholesale revolution in Fourth Amendment law.[114] These qualifications would “mak[e] a crazy quilt of the Fourth Amendment”—or, to return to our earlier metaphor, add needless complexity and word jumbles to the Scrabble board.[115] For the Supreme Court to create this complexity, Justice Alito argued, was unnecessary and irresponsible. The proper course would have been to allow Congress and the States to choose how to adapt the law to the challenges of privacy in the digital age.

One final case warrants discussion because it demonstrates Justice Alito’s firm commitment to judicial caution even in the face of particularly repugnant facts. In Pena-Rodriguez v. Colorado,[116] the Court considered the scope of the evidentiary rule against admitting juror testimony to impeach jury verdicts. This rule predates the Founding. It provides that once a jury delivers its verdict, the losing party can’t offer juror testimony to cast doubt on the regularity of the jury deliberations in an effort to set aside the verdict.[117] This rule exists to shield jury deliberations from public scrutiny and to avoid post-verdict harassment of jurors. And the Court has applied it broadly: In one case, it held the rule excluded evidence even of the jury’s rampant alcohol, marijuana, and cocaine use during a criminal trial.[118] But in Pena-Rodriguez, the Court held that the Sixth Amendment requires the no-impeachment rule to give way where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a defendant.[119]

Justice Alito dissented. He began by characterizing the majority’s intentions as “admirable” and stating that “even a tincture of racial bias can inflict great damage” on the criminal justice system.[120] But after a lengthy survey of the history of and justifications for the no-impeachment rule, he concluded that the Court’s creation of a constitutional exception to no-impeachment rules—for the first time—was improper. He went on to predict that the majority’s doctrinal innovation would invite the practical harms that no-impeachment rules were designed to prevent. And he concluded by “question[ing] whether our system of trial by jury can endure this attempt to perfect it.”[121]

* * *

Perhaps Justice Alito’s criminal procedure jurisprudence can best be summed up by his reflection in the Fourth Amendment case Manuel v. City of Joliet:[122] “A well-known medical maxim—‘first, do no harm’—is a good rule of thumb for courts as well.”[123] This judicial philosophy has proved as influential as it is modest. Justice Alito’s pragmatic and cautious approach to criminal procedure has crept into the Court’s handling of all sorts of doctrines, from Miranda and the exclusionary rule to the Confrontation Clause and sentencing. His influence here, as in so many other areas, will be felt for decades to come.

[*] Circuit Judge, United States Court of Appeals for the Fifth Circuit. I am deeply grateful to my law clerks, Micah Quigley and Seanhenry VanDyke, and to my intern, Candace Cravey, for their invaluable research assistance. All mistakes are my own.

[2] See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 561–62 (1992) (“One can think of the choice between rules and standards as involving the extent to which a given aspect of a legal command should be resolved in advance or left to an enforcement authority to consider. Thus, advance determination of the appropriate speed on expressways under normal conditions . . . [is] ‘rule-like’ when compared to asking an adjudicator to attach whatever legal consequence seems appropriate in light of whatever norms and facts seem relevant.”).

[3] Contrast Justice Alito’s appreciation for simple, easy-to-understand rules with Justice Breyer’s (putatively) pragmatic “enthusiasm for judicial minimalism, in the form of narrow decisions that leave the hardest questions undecided.” Cass R. Sunstein, Justice Breyer’s Pragmatic Constitutionalism, 115 Yale L.J. 1719, 1729 (2006) (emphasis added) (in the administrative-law context).

[4] See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).

[5] See Collins v. Virginia, 138 S. Ct. 1663, 1681 (2018) (Alito, J., dissenting) (“An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, ‘the law is a ass—a idiot.’” (quoting Charles Dickens, Oliver Twist 277 (1867))).

[6] Cf., e.g., Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1766 (2020) (Alito, J., dissenting) (framing the textualist question as: “How would the terms of a statute have been understood by ordinary people at the time of enactment?”).

[7] Bram v. United States, 168 U.S. 532, 542 (1897); see also Leonard W. Levy, Origins of the Fifth Amendment (1968) (discussing the origins of the right against self-incrimination).

[8] See J.D.B. v. North Carolina, 564 U.S. 261, 284–86 (2011) (Alito, J., dissenting) (documenting cases that analyzed a wide variety of factors indicating “voluntariness”).

[9] 384 U.S. 436 (1966); see also Michigan v. Tucker, 417 U.S. 433, 445–46 (1974) (casting Miranda as prophylactic).

[10] See Evan H. Caminker, Miranda and Some Puzzles of “Prophylactic” Rules, 70 U. Cin. L. Rev. 1, 1 (2001) (discussing various definitions of the phrase “prophylactic rule” and concluding, “I prefer defining the term to refer to doctrinal rules self-consciously crafted by courts for the instrumental purpose of improving the detection of and/or otherwise safeguarding against the violation of constitutional norms.”). But see id. at 25–28 (arguing the concept is not helpful).

[11] See, e.g., Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding that Miranda created a bright-line constitutional rule that Congress cannot statutorily abrogate and emphasizing that “experience suggests that the totality-of-the-circumstances test which [Congress] seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner”).

[12] Stansbury v. California, 511 U.S. 318, 322 (1994) (internal quotation omitted).

[13] Id. at 324–25.

[14] 564 U.S. 261 (2011).

[15] Id. at 265–66.

[16] Id. at 266.

[17] Id. at 267.

[18] See id. at 281.

[19] See id. at 271–75.

[20] Id. at 277.

[21] Id. at 282 (Alito, J., dissenting).

[22] See id. at 284–85 (Alito, J., dissenting).

[23] See id. at 281–83; see also Caminker, supra note 9 (discussing Dickerson).

[24] J.D.B., 564 U.S. at 292.

[25] 570 U.S. 178 (2013).

[26] Id. at 181.

[27] Id. at 182 (plurality opinion) (quotation omitted).

[28] Id. (quotation omitted).

[29] See id. at 183 (citing Minnesota v. Murphy, 465 U.S. 420, 427 (1984)).

[30] See id. at 184–185.

[31] Id. at 201–02 (Breyer, J., dissenting).

[32] Id. at 190–91 (plurality opinion) (also responding to the dissent’s charge that the plurality’s rule would itself be hard to administer).

[33] See, e.g., Byrd v. United States, 138 S. Ct. 1518 (2018) (Alito, J., concurring) (short concurrence identifying the relevant questions informing whether a defendant can bring a Fourth Amendment claim in an evident attempt to keep the doctrine as clean as possible); Birchfield v. North Dakota, 579 U.S. 438 (2016) (majority opinion) (applying ordinary Fourth-Amendment rules in the drunk-driving context without distorting the doctrine); Yeager v. United States, 557 U.S. 110 (2009) (Alito, J., dissenting) (arguing, among other things, that the majority’s rule would be too hard to apply).

[34] United States v. Booker, 543 U.S. 220, 250 (2005).

[35] See id. at 230–32.

[36] See id. at 258–59.

[37] 552 U.S. 38 (2007).

[38] See id. at 40–41 (majority opinion).

[39] See id. at 51.

[40] Id. at 61 (Alito, J., dissenting).

[41] Id. at 63–64.

[42] Compare id. at 64 (Alito, J., dissenting) (“[I]n reading the Booker remedial opinion, we should not forget the decision’s constitutional underpinnings. Booker and its antecedents are based on the Sixth Amendment right to trial by jury.”), with id. at 40–60 (majority opinion) (not even using the phrase “Sixth Amendment”).

[43] See id. at 63 (Alito, J., dissenting).

[44] See id. at 66.

[45] Kimbrough v. United States, 552 U.S. 85 (2007) (Alito, J., dissenting) (alone); Cunningham v. California, 549 U.S. 270 (2007) (Alito, J., dissenting) (joined by Justices Kennedy and Breyer); Pepper v. United States, 562 U.S. 476 (2011) (Alito, J., concurring in part and dissenting in part) (alone).

[46] U.S. Const. amend. VI.

[47] 567 U.S. 50 (2012).

[48] See id. at 56 (plurality opinion).

[49] See id. at 58 (plurality opinion).

[50] See id. at 120 (Kagan, J., dissenting) (discussing the Court’s disagreement over the plurality’s reasoning).

[51] Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009) (Kennedy, J., joined by the Chief Justice and Justices Breyer and Alito, dissenting) (lamenting the Court’s formalistic extension of the Confrontation Clause to forensic analysts’ testimony).

[52] 541 U.S. 36 (2004).

[53] See id. at 49–69.

[54] Williams, 567 U.S. at 58 (plurality opinion).

[55] Id. at 127–28 (Kagan, J., dissenting); id. at 79–80 (plurality opinion).

[56] Id. at 113–18 (Thomas, J., concurring); id. at 134–35 (Kagan, J., dissenting); id. at 84–86 (plurality opinion).

[57] Id. at 86 (plurality opinion) (quotation omitted).

[58] Rodriguez v. United States, 575 U.S. 348, 370 (2015) (Alito, J., dissenting).

[59] Collins v. Virginia, 138 S. Ct. 1663, 1681–83 (2018) (Alito, J., dissenting).

[60] See Yeager v. United States, 557 U.S. 110, 133–36 (2009) (Alito, J., dissenting).

[61] See Rothgery v. Gillespie Cnty., 554 U.S. 191, 213–18 (2008) (Alito, J., concurring).

[62] Stare decisis is Latin for “to stand by things decided,” and refers to the principle that courts should follow earlier judicial decisions when the same issue arises in subsequent litigation. See Stare Decisis, Black’s Law Dictionary (11th ed. 2019).

[63] 556 U.S. 332 (2009).

[64] See id. at 335.

[65] 453 U.S. 454, 460 (1981).

[66] Gant, 556 U.S. at 341.

[67] Id. at 343.

[68] Id. at 356 (Alito, J., dissenting).

[69] Id. at 355.

[70] Id. at 358 (quotation omitted).

[71] Id.

[72] Payne v. Tennessee, 501 U.S. 808, 828 (1991).

[73] Gant, 556 U.S. at 359 (Alito, J., dissenting).

[74] Id.

[75] Id. at 356.

[76] 564 U.S. 229 (2011).

[77] The exclusionary rule is a judge-made doctrine that often renders evidence obtained in violation of a defendant’s Fourth Amendment rights inadmissible in subsequent criminal proceedings. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).

[78] Davis, 564 U.S. at 232.

[79] Id.

[80] 140 S. Ct. 1390 (2020).

[81] 406 U.S. 404 (1972).

[82] Ramos, 140 S. Ct. at 1397.

[83] Id. at 1425–26 (Alito, J., dissenting).

[84] Id. at 1436 (Alito, J., dissenting).

[85] 138 S. Ct. 2448 (2018) (overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and holding that imposing union “agency fees” on nonconsenting public-sector employees violates the First Amendment).

[86] Ramos, 140 S. Ct. at 1436 (Alito, J., dissenting).

[87] See Edwards v. Vannoy, 141 S. Ct. 1547 (2021).

[88] 139 S. Ct. 1960 (2019).

[89] See id. at 1962.

[90] Antonin Scalia, A Matter of Interpretation 8 (1997).

[91] Id. at 9.

[92] 304 U.S. 64 (1938).

[93] See Andrew S. Oldham, Sherman’s March (in)to the Sea, 74 Tenn. L. Rev. 319, 374–77 (2007).

[94] See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996).

[95] U.S. Const. amend. IV.

[96] 565 U.S. 400 (2012).

[97] See id. at 402.

[98] 389 U.S. 347 (1967).

[99] Jones, 565 U.S. at 406.

[100] Id. at 408, 408 n.5.

[101] Id. at 418–19 (Alito, J., dissenting).

[102] Id. at 427 (Alito, J., dissenting).

[103] See id. at 425–26 (Alito, J., dissenting).

[104] Id. at 429–30 (Alito, J., dissenting).

[105] 569 U.S. 1 (2013).

[106] Id. at 3.

[107] See id. at 17 (Alito, J., dissenting).

[108] 138 S. Ct. 2206 (2018).

[109] Id. at 2211.

[110] Id. at 2212.

[111] Id. at 2223.

[112] Id. at 2218, 2220.

[113] Id. at 2246 (Alito, J., dissenting).

[114] Id. at 2261 (Alito, J., dissenting).

[115] Id. (Alito, J., dissenting) (quotation omitted).

[116] 137 S. Ct. 855 (2017).

[117] See Fed. R. Evid. 606(b).

[118] See Tanner v. United States, 483 U.S. 107, 115–16 (1987).

[119] Pena-Rodriguez, 137 S. Ct. at 869.

[120] Id. at 875 (Alito, J., dissenting).

[121] Id. at 885 (Alito, J., dissenting).

[122] 137 S. Ct. 911 (2017).

[123] Id. at 929 (Alito, J., dissenting).

Justice Alito on Criminal Law – Kate Stith

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Justice Alito on Criminal Law

Kate Stith^*

I.               Introduction

Justice Samuel A. Alito is a natural judge—by temperament, character, disposition, and experience. What do I mean by a “natural judge”? It is difficult to conceive of Justice Alito accepting a legal position where he would have to perform as a pure advocate, which he knows may require mincing words, shading nuance, and hiding the ball. Indeed, Alito’s entire career as a lawyer—both within the U.S. Department of Justice and in the federal judiciary—has been defined, in part, by ethical norms and standards of straightforward and honest lawyering.[1]

This chapter concerns itself with the corner of Justice Alito’s jurisprudence dedicated to the criminal law. Justice Alito’s criminal-law jurisprudence reflects his aversion to reasoning that will leave the Supreme Court (or the police, citizens, and lower courts) out on a limb, in a place that threatens to undo social understandings and order.

To begin, I should clarify what I mean (and what I do not mean) by “criminal law.” When I say criminal law, what I really mean is substantive criminal law. Substantive criminal law refers to the set of laws within a jurisdiction that define and punish the acts and mental states that together constitute crimes. Criminal law is, of course, distinct from criminal procedure, which regulates the machinery by which the government can apprehend alleged violators of the criminal law and initiate a prosecution. Criminal procedure is largely a matter of constitutional interpretation, but the meat and potatoes of the criminal law is statutory interpretation.

As Justice Scalia once noted, “We live in an age of legislation, and most new law is statutory law.”[2] Every actor in a criminal case—whether the prosecutor, the defendant, or the judge—must engage in statutory interpretation. Prosecutors, first, must identify the statutory provision an individual allegedly violated and determine under that statute which facts must be proven beyond a reasonable doubt to the factfinder. Defendants, by contrast, will mine statutes to identify every burden the prosecutor must prove and what, if any, defenses the law affords. Judges must interpret criminal statutes to instruct the jury, assess the relevance of evidence, and impose a sentence within the lawfully authorized range.

I focus on two aspects of federal criminal law that have been of particular concern to Justice Alito—the categorical approach and mens rea. The former addresses primarily how Congress has instructed federal courts to sentence repeat offenders (or “career criminals” in the words of Congress),[3] while the latter addresses what mental state is required while committing the crime at issue.

Justice Alito’s opinions in these two areas epitomize his pragmatic approach to the criminal law. He is not interested in constructing or in deducing from a grand theory, or any theory at all. Pragmatism is less a unified theory than a collection of related ideas, including intellectual humility, resistance to abstraction, and concern with real-world consequences. Over the years, Justice Alito has expressed unease that the Court conceives of itself as a tribunal of theoreticians rather than a tribunal of judges who must grapple with the concrete realities of the criminal-justice system at large and the facts of a particular defendant’s case. If the Court nonchalantly opens the floodgates of litigation or delivers unclear instructions to the lower courts, Justice Alito is ready in the wings (often in solo concurrences or dissents) to remind the Court of its decisions’ problematic real-world consequences. In one criminal-law dissent emblematic of his pragmatism, Justice Alito noted that the “well-known medical maxim—‘first, do no harm’—is a good rule of thumb for courts as well.”[4] As we shall see, this is a precept Justice Alito follows too.

II.             The Categorical Approach

The categorical approach is, in Justice Alito’s words, the result of “pointless abstract questions” for “aficionados of pointless formalism.”[5] The Justice’s sharp words make the categorical approach an irresistible—though highly convoluted—window into his pragmatic jurisprudence.

In its primary application, the categorical approach is a method of statutory interpretation that the Supreme Court has said federal courts must use during the sentencing stage of some criminal prosecutions. Most notably, the categorical approach has been applied to provisions of the Armed Career Criminal Act (ACCA)—a federal statute first enacted as part of the Comprehensive Crime Control Act of 1984. Pursuant to ACCA, the sentencing judge must determine whether the defendant’s prior convictions are of the type that, under the 1984 statute (as further amended), trigger a higher penalty for the federal crime currently being sentenced.[6]

For instance, the bare crime of being a felon in possession of a firearm has a ten-year maximum penalty.[7] But if an individual convicted under the felon-in-possession statute has three or more previous felony convictions for a “violent felony” or a “serious drug offense,” the sentencing consequences are much more severe. Instead of a ten-year maximum sentence, the defendant is subject to a mandatory minimum sentence of fifteen years.[8] But how is the judge to determine whether a prior offense is “violent” or “serious”? In 1990, the Supreme Court in an opinion by Justice Blackmun,[9] set the course that, amazingly, it still follows today: ACCA requires sentencing judges to engage in an inquiry that is, to put it mildly, highly abstract. Moreover, the inquiry is truncated; it requires the sentencing court, in most contexts,[10] to ignore the facts of a defendant’s actual conduct and instead look only to the text of the statute under which the defendant was previously convicted.[11]

For both the lawyers and nonlawyers among us, the categorical approach may seem a soporific example to pick in cataloguing Justice Alito’s jurisprudence. But as the Justice’s opinions in this area reveal, the practical implications of the categorical approach are significant and alarming. The approach leads to wild variations in sentencing (and deportation) consequences depending on the precise wording of the (usually state-law) statutes under which defendants have previously been convicted. Moreover, the Court’s alteration and fine-tuning of the categorical approach has cascading effects across our entire criminal justice system. What may seem like an abstract, textual inquiry for the Court can undo the work of prosecutors, criminal-defense lawyers, and judges across the land. In this Part, I offer a brief historical primer on the categorical approach and highlight Justice Alito’s most important opinions on this topic, which put his pragmatism on full display.

* * *

As noted, the categorical approach’s journey began more than thirty years ago, with the Supreme Court’s first interpretation of ACCA.[12] In the 1980s, Congress turned its attention to “career” criminals and sought to “increase the participation of the Federal law enforcement system in efforts to curb armed, habitual (career) criminals” in the states.[13] Congress noted the proliferation of “crimes involving theft or violence . . . by a very small percentage of repeat offenders.”[14] In its contemporary and amended form, ACCA’s fifteen-year mandatory minimum applies to a person who commits a felony punishable by greater than one year and “has three previous convictions by any court . . . for a violent felony or a serious drug offense.”[15] A prior conviction may arise from any court (state or federal).[16] Because most felonies are prosecuted in state court, this means that in most cases, a federal court must determine whether a prior state offense counts as a “violent felony” or “a serious drug offense” under ACCA.

ACCA does not instruct judges how to make that determination. Neither Congress nor any state legislature has a list of “violent” offenses or of “serious” drug offenses; rather, each jurisdiction enacts prohibitions, which accumulate over the years.[17] Some crimes may on their face sound unquestionably violent, such as murder and rape. Yet, as they are wont to do, lawyers begin to pose hypotheticals that bend these intuitions. Is murder by starvation a violent felony? Is consensual sex with an underage teenager also a violent felony? What makes a particular drug offense “serious”—the particular type of drug, the amount of the drug, or the role of the offender (as a “kingpin,” for example)?

In the critical 1990 case that adopted the “categorical” approach to answering these questions, Taylor v. United States,[18] the Court confronted whether a defendant’s prior conviction for burglary in the state of Missouri constituted a violent felony within the meaning of ACCA. If Missouri burglary did count as a violent felony, then the defendant would be subject to the fifteen-year mandatory minimum.[19] But if Missouri burglary did not count as a violent felony, then the defendant would not be subject to the enhanced sentence under ACCA.

In resolving the question, the Court refused to look at the facts of Taylor’s prior burglary conviction, which might have revealed whether Taylor actually burglarized violently or with a dangerous weapon.[20] Instead, the Court adopted a “formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts.”[21] This approach requires a sentencing court to do a side-by-side comparison of two statutes: first, the federal statute defining a generic “violent felony” or a “serious drug offense,” and, second, the statute defining the crime of prior conviction (e.g., the Missouri burglary statute at issue in Taylor).[22]

After comparing the two statutes, the sentencing court must ask whether the statute of prior conviction punishes conduct that is not included in the generic definition of a “violent felony” or a “serious drug offense.” If the statute of prior conviction only reaches behavior within this definition of a “violent felony” or a “serious drug offense,” then the prior conviction counts toward the sentencing enhancement. If the statute of prior conviction sweeps more broadly and punishes conduct that is beyond the definition of a “violent felony” or a “serious drug offense” under federal law, then the prior conviction does not count toward the sentencing enhancement.

For example, in Taylor itself, the Court had to compare ACCA’s definition of “violent felony” to Missouri’s definition of second-degree burglary. ACCA includes “burglary” in a list of violent felonies, but it leaves that term undefined—a task the Supreme Court took on for itself. Whereas the federal definition of burglary only proscribes unauthorized entry into a “building or other structure,” the Missouri definition of burglary also includes unauthorized entry into a “boat or vessel.”[23] As a result of this mismatch, the Court held, Taylor’s prior conviction therefore did not count toward ACCA’s sentencing enhancement. The problem was that the Missouri statute punished certain types of conduct not prohibited under federal law (namely, burglary of a “boat or vessel”). It was irrelevant that Taylor may have, in fact, entered a building or structure and not a boat or vessel because the statute of prior conviction, in the abstract, swept more broadly than the generic federal definition.

But why ignore the facts of Taylor’s case to determine if his prior offense constituted a violent felony under ACCA? The Supreme Court supplied a handful of justifications for a side-by-side statutory comparison instead of digging into the factual record, including the “daunting” reality of rifling through the record, “practical difficulties[,] and potential unfairness” of fact-bound inquiries.[24] The categorical approach’s prohibition on peering into the factual record relieves sentencing courts from the possibly cumbersome effort of retrieving state-court records, or being left without a paddle in some plea-bargaining cases. Avoiding judicial inquiry into the actual facts of the defendant’s prior conviction also avoids the question whether such inquiry comes within Apprendi’s demands that sentencing factors enhancing punishment must be admitted by the defendant or proved beyond a reasonable doubt to a jury.[25]

And so the Court embarked on a course that would employ “uniform, categorical definitions to capture all offenses of a certain level of seriousness . . . regardless of technical definitions and labels under state law.”[26] By carefully sticking with categorical definitions, sentencing courts would avoid the “unfairness” of enhancing a defendant’s sentence based on the mere “label employed by the State of conviction.”[27]

Fifteen years after Taylor, the Court (which Justice Alito would join the following Term) somewhat softened this aversion to reviewing the factual record of a prior conviction. In Shepard v. United States and its progeny, the Court has carved out an exception to the no-factual-record rule in what has come to be known as the “modified categorical approach.” Under the modified categorical approach, a sentencing court may review the terms of the charging document, plea agreement, colloquy transcript, or “some comparable judicial record” of the factual basis of the conviction.[28] Taylor had abjured any review of such documents (now known as Shepard documents). While Shepard opened the door to some consideration of the actual facts of the defendant’s prior offense, the Court has clarified in subsequent cases that the modified categorical approach is appropriate only when the statute of conviction describes multiple crimes and Shepard documents would be useful to determine which of those crimes the defendant was convicted.[29] Critically, this means that where a statute merely defines multiple means of committing a single crime, the traditional categorical approach of Taylor applies—and the factual basis of the conviction is entirely off the table.

When Justice Alito joined the Court in 2006, the contours of the (now modified) categorical approach had been set. In his first few Terms at the Court, Justice Alito showed himself to be a somewhat faithful adherent. In James v. United States, Justice Alito applied the categorical approach to find that the attempted burglary at issue counted as a “violent felony” under ACCA’s residual clause.[30] In United States v. Rodriquez, he similarly wrote for the Court that a Washington drug-trafficking felony counted as a “serious drug offense” under ACCA.[31]

Although he applied the categorical approach, even in these early cases he registered concerns about rigid application without attention to practical consequences. In James, he pointed out that this mode of statutory interpretation should not require “metaphysical certainty” as to the scope of the statute of prior conviction; rather, sentencing courts must look for a “realistic probability, not a theoretical possibility, that” the statute of prior conviction encompasses behavior not included in the federal definition.[32] Moreover, in Rodriquez, Justice Alito rebuffed the claim that inquiries into “novel questions of state law and complex factual determinations” are necessarily “difficult.”[33] Sentencing courts could easily look to Shepard documents, including formal charging documents and plea colloquies.[34] And a “mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.”[35]

Justice Alito’s unease with the categorical approach became far more pronounced by 2010. In Johnson v. United States, the Supreme Court had to decide whether Florida felony battery by “actually and intentionally touching” the victim constituted a violent felony under ACCA.[36] Prosecutors sought an enhanced penalty under that Act, but Johnson objected to the categorization of his 2003 Florida conviction for simple battery as a “violent felony.”[37] Under Florida law, battery may occur in any of three ways: if the defendant “[i]ntentionally caus[ed] bodily harm,” “intentionally str[uck]” the victim, or “[a]ctually and intentionally touche[d]” the victim.”[38] The court records of Johnson’s prior simple-battery conviction were unavailable, so no Shepard documents could illuminate which of the three divisible crimes Johnson had committed. As a result, the majority, in an opinion by Justice Scalia, applied the pure categorical approach to look only at “the least of these acts,” namely “actually and intentionally touching.”[39] The Court read ACCA’s “physical force” provision to require force that is violent.[40] Following this definition, the majority reasoned that “touching” may lack sufficient violence to reach the level of physical force necessary to constitute a violent felony under federal law. Defendants in Florida, including Johnson, could therefore be convicted of felony battery without having committed a violent felony within the meaning of ACCA.[41]

In dissent, Justice Alito strongly objected on several grounds to the majority’s characterizations and reasoning. He first challenged the Court’s tortured understanding of “physical force” as requiring violence—which he persuasively demonstrated does not accord with the common-law definition of “force.”[42] From there, Justice Alito noted the inevitable “untoward consequences” of the majority’s interpretation of Florida’s battery offense for the purposes of ACCA.[43] Numerous states are like Florida: they have indivisible battery provisions “govern[ing] both the use of violent force and offensive touching,” and charging instruments and jury instructions that “simply track the language of the statute” without distinguishing the type of force used by the defendant.[44] The inevitable result would be a windfall to defendants who in fact have used violence in committing a battery, solely because of the statutory grouping-conventions and the record practices of the state of conviction. More generally, once a crime is labeled categorically “nonviolent” under the Court’s approach, it cannot qualify as an ACCA predicate even if committed in a violent manner.

The Court waved away Justice Alito’s concerns, noting that the government had on some occasions successfully used the modified categorical approach with Shepard documents. At the same time, the court did acknowledge that the “absence of records will often frustrate application of the modified categorical approach—not just to battery but to many other crimes as well.”[45]

Justice Alito also worried in Johnson that the majority would “hobble at least two federal statutes” that also contain the term “physical force.”[46] Under 18 U.S.C. § 922(g)(9), a person convicted of a “misdemeanor crime of domestic violence” may not lawfully possess a firearm, and “misdemeanor crime of violence” is defined to include crimes with “an element, the use or attempted use of physical force.”[47] And under 8 U.S.C. § 1227(a)(2)(E), an alien convicted of a “crime of domestic violence” is subject to removal, with “crime of domestic violence” defined to include an offense with “an element the use [or] attempted use . . . of physical force.”[48] If Johnson’s definition of “physical force” and its strict adherence to the categorical approach were to govern interpretation of these terms, many persons convicted of serious spousal or child abuse would be allowed to possess firearms or remain within the United States.

Justice Alito was prescient on this score. The interconnectedness of various criminal statutes has permitted defendants to apply categorical-approach arguments across different statutes, both state and federal. Consider, for example, the recent litigation over the constitutionality of “residual clauses.” Residual clauses generally encompass any “violent felony” (or the analogous “crime of violence”), as defined to include offenses that that pose a sufficient degree of “risk” of physical injury.[49] Since the dawn of the categorical era, judges had been required to apply that approach to determine whether the “ordinary case” of the prior crime at issue surpassed the risk threshold so to count as a violent felony under the applicable residual clause.[50] However, in 2015, the Supreme Court held (per Justice Scalia) in Johnson v. United States that ACCA’s residual clause was unconstitutionally vague because of the “unpredictability and arbitrariness” of judges applying the categorical approach to determine what conduct possessed sufficient risk.[51] And in 2018[52] and 2019[53] the Court applied Johnson to hold nearly identical residual clauses in two other federal statues unconstitutionally vague.

Moreover, even though the wording of these residual clauses is virtually identical, the consequences of the Court nullifying these clauses are not identical. In Johnson, the Court considered ACCA’s residual clause—which, had it not been struck down as unconstitutionally vague, would have had the effect of enhancing an already convicted defendant’s sentence on his current federal offense. In the 2019 case, United States v. Davis, the residual clause at issue also sought to define “crime of violence.”[54] But the operative effect of applying this residual clause would not be to enhance the sentence for the defendant’s current offense. Rather, the residual clause in Davis was part of the substantive offense that the defendant was convicted of in the case-at-hand—here, using a gun in furtherance of any federal “crime of violence.”[55] Simply put, if the residual clause in Davis was found unconstitutional, then the prohibition itself was unconstitutional and a defendant could not be prosecuted under it. In light of the Court’s holding, post-Davis defendants challenging their convictions under this residual clause will have their convictions thrown out entirely.

Writing in dissent,[56] Justice Kavanaugh—joined by Justices Thomas and Alito and in relevant part by Chief Justice Roberts—despaired the practical implications that Justice Alito had predicted in Johnson: namely, all sorts of offenders convicted under the residual clause could now seek to vacate their convictions. To illustrate the absurdity of the Court’s decision, Justice Kavanaugh offered up several examples of defendants now off the hook due to the nullification of the firearm-in-furtherance residual clause: a defendant convicted of assault with intent to murder after shooting his wife multiple times, a defendant convicted of arson for throwing a Molotov cocktail to firebomb a shop, a defendant who kidnapped a man and severely beat him with threats to kill him, and so on.[57] By constraining the Court to consider the “imagined conduct of a hypothetical defendant rather than [] the actual conduct of the actual defendant,” the categorical approach has yielded “serious consequences.”[58]

Justice Alito reserved his strongest criticisms of the categorical approach for his dissent in Mathis v. United States, issued in 2016.[59] As others have noted, Justice Alito’s Mathis dissent is “crucial [to an] understanding of his jurisprudence.”[60] In Mathis, the Supreme Court confronted a categorical-approach question nearly identical to Taylor’s: whether Iowa burglary, which reaches unauthorized entry into any “building, structure, [or] land, water, or air vehicle,” counts as a burglary under ACCA, which only reaches unauthorized entry into a “building or other structure.”[61] The more precise (if mind-numbing) question before the Court was whether the modified categorical approach (where the sentencing court may review Shepard documents to narrow its inquiry) applied to a statute listing “multiple, alternative means of satisfying one (or more) of its elements,” as opposed to alternative elements.[62]

The Iowa burglary statute was undoubtedly broader than the federal definition of burglary under the approach of Taylor. But in Mathis, the Solicitor General invited the Court to loosen its formalism. If the sentencing court could review Shepard documents, it might conclude that Mathis had in fact burglarized a “building or other structure” within the meaning of ACCA and his prior conviction for Iowa burglary would “count” toward ACCA’s sentencing enhancement.[63] Six members of the Court declined the Solicitor General’s invitation,[64] reasoning that the Iowa burglary statute’s elements are broader than the federal definition of battery no matter “[h]ow a given defendant actually perpetrated the crime . . .[or] the ‘underlying brute facts or means’ of commission.”[65] The Court refused to stray course from Taylor and Shepard based on the text of ACCA, Sixth Amendment Apprendi concerns, and avoiding unfairness arising from possible “errors” in the trial record related to statutory means of committing an offense.[66]

In his memorable and withering dissent, Justice Alito compared the Court’s refusal to deviate from the categorical approach to the story of Sabine Moreau, a Belgian woman whose refusal to deviate from her GPS led to her driving 900 miles in the wrong direction toward Zagreb instead of Brussels.[67] With the categorical approach first programmed into the Court’s GPS in Taylor in 1990, “the Court set out on a course that has increasingly led to results that Congress could not have intended.”[68]

Here we may review a few examples from cases in which Justice Alito had previously opined. As the Justice noted in Mathis, the result of that decision would be that burglary convictions in many states could be disqualified from counting as violent felonies under ACCA,[69] just as under Descamps v. United States, no California burglary conviction could count under ACCA.[70] Moncrieffe v. Holder had rendered convictions in nearly half the states for large-scale drug trafficking to not count as “illicit trafficking in a controlled substance” under the immigration laws.[71] We may add that the year before Mathis, Justice Alito joined Justice Thomas’s dissent in Mellouli v. Lynch,[72] rejecting the majority’s holding that if a state’s drug schedule includes substances not included on the federal drug schedule, a state drug offense may not constitute a “violation of . . . any law . . . relating to a controlled substance,” which is a ground for removal under the Immigration and Nationality Act.[73] This Term, in United States v. Taylor, Justice Alito dissented from the Court’s “veer[ing] off into fantasy land” when it held that an attempted Hobbs Act robbery did not constitute a “crime of violence” in a case where a defendant’s accomplice shot and killed the attempted-robbery victim.[74] As Justice Alito proclaimed in Mathis, the Court had ignored the “warning bell” of such anomalous results and “ke[pt] its foot down and drive[n] on” with the categorical approach.[75] Justice Alito despaired that such anomalies are the inevitable result of the Court’s unceasing formalism.

Adding insult to injury, the categorical approach’s premium for abstract inquiry often leaves sentencing courts up a creek without a paddle. The threshold element/means distinction at issue in Mathis is hardly an insignificant undertaking for a sentencing court, which must typically identify a state-court precedent addressing whether a provision of a criminal statute is a means or element. Where no precedent exists, a sentencing court has to make this distinction itself. The means/element determination in Mathis only seemed “easy,” Justice Alito explained—in a not-atypical insight borne of his penchant for legal realism—because Mathis had a “fortified legal team that took over [his] representation after this Court granted review [and] found an Iowa case on point.”[76] This belated discovery evinces, in the real world of state statutes being consulted by federal sentencing judges, the inordinate difficulty of determining whether a statutory provision constitutes a means or an element.

Drawing on his decade on the Supreme Court bench at the time of Mathis, Justice Alito offered an alternative, an approach for the “real world,”[77] that would avoid the mess of the categorical approach:

Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that a building was burglarized, count the conviction.[78]

As Justice Alito had suggested before in Descamps,^[79] the Court should drop its formalistic inquiry into whether a statute is divided into elements or means and instead delve into the factual record to settle whether the prior conviction can trigger a sentencing enhancement under federal law. If the factual record is insufficient to determine that a prior conviction falls within the definition of a “violent felony” or “serious drug offense,” the prior conviction won’t count. In Justice Alito’s view, the Court should discontinue its practice of concocting hypothetical crimes and fact patterns and shed the conceit that “[r]eal-world facts are irrelevant.”^[80] Like Ms. Moreau, the Court has driven past numerous signs that it is “off course,” but it has rebuffed “opportunities to alter its course. . . , traveling even further away from the intended destination.”[81]

* * *

In the categorical-approach cases, Justice Alito has shown an abiding disdain for abstract inquiries that turn a blind eye to real-world consequences. In his more than fifteen years on the Court, several of his prognostications have been proven correct, and his consistent critique may have won over some of his colleagues.[82] For example, in the United States v. Taylor case decided in 2022,[83] Justice Thomas expressed openness to abandoning the categorical approach and adopting a conduct-based approach akin to Justice Alito’s proposal in Mathis. At oral argument, Thomas asked both the government and respondent to game out what would happen “if we could abandon the categorical approach.”[84] Naturally, the government noted that it had not briefed the issue but would welcome such a change in light of “the judicial . . . chorus of complaints about the categorical approach that has been growing ever louder.”[85] Although the case was decided 7-2 with Justices Alito and Thomas in dissent, Thomas took the opportunity to recommend overruling the Court’s categorical-approach precedents, which have “led the Federal Judiciary on a ‘journey Through the Looking Glass.’”[86] Like Justice Alito, Thomas would extinguish the categorical approach’s reliance on hypothetical defendants committing hypothetical crimes and instead adopt a “conduct-based approach” into the defendant’s actual conduct to determine whether a prior offense constitutes a violent felony or crime of violence.[87]

Justice Alito’s pragmatic concerns with the categorical approach have indeed generated a judicial chorus of complaints outside One First Street. In a recent Second Circuit opinion, Judge Michael H. Park (a two-time law clerk of Justice Alito) noted the “absurdity of the exercise” of the categorical approach, which requires judges to “ignore the actual facts before them and instead to theorize about whether certain crimes could be committed without violent force.”[88] The categorical approach “perverts the will of Congress, leads to inconsistent results, wastes judicial resources, and undermines confidence in the administration of justice.”[89] Judge Park went on to cite sixteen federal-court opinions concurring with this sentiment, further measuring the reach of Justice Alito’s concerns.[90]

Judge Reena Raggi, also of the Second Circuit, had recent occasion to opine on the practical consequences of the categorical approach in a case vacating a conviction for Hobbs Act robbery, resembling the recent Term’s Taylor decision concerning attempted Hobbs Act robbery.[91] Judge Raggi noted the irony that in a case where there is “no question” that the crime of conviction “was violent, even murderous,” the conviction must be vacated in part because it cannot be deemed a crime of violence through the “commands [of] the categorical approach.”[92]

Judge William Pryor of the Eleventh Circuit put his disdain for the categorical approach more simply: “It’s nuts.”[93] He asked, “How did we ever reach the point where” we “must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? . . . Congress needs to act to end this ongoing judicial charade.”[94] If Justice Alito could respond to Judge Pryor’s charge that the criminal-justice system must navigate out of the categorical-approach quagmire, he might warn Judge Pryor, “Don’t trust your GPS.”

III.           Mens Rea

In his opinions construing the mens rea requirement for a variety of federal crimes, Justice Alito has exhibited his characteristic pragmatism and decried the far-reaching ramifications of the Court’s decisions. Unlike the categorical-approach context, where criminal liability is not typically at issue,[95] mens rea is often a defendant’s best and last line of defense. Mens rea is derived from the classic maxim, actus non facit reum, nisi mens sit rea,[96] or as William Blackstone translated it, “an unwarrantable act without a vicious will is no crime at all.”[97] Mens rea is a foundational concept in our criminal law and requires that an individual must have a culpable mental state corresponding to a particular element of a crime (whether it’s an act, result, or the circumstances surrounding the crime).

Like most legal precepts, the necessity of mens rea is not without its exceptions,[98] but as a general matter, courts interpreting criminal statutes must identify the mens rea associated with the other various elements that together comprise a crime. In the contemporary era, the Model Penal Code provides the generally accepted standards of mens rea, which come in four increasingly culpable levels: negligence, recklessness, knowledge, and purpose.[99] In most situations, the higher the level of mens rea, the steeper the government’s evidentiary burden in proving criminal liability. Where there is no direct evidence of the defendant’s mental state, but the defendant clearly engaged in the charged conduct, the defendant’s primary jury argument may be that the government has failed to prove the requisite mens rea by proof beyond a reasonable doubt. Defendants may also argue that the government has put forth insufficient evidence to demonstrate mental culpability or that a criminal prohibition requires a higher tier of mens rea than the government has proven or than has been charged to the jury.

In the categorical-approach context, Justice Alito voiced his concern with formalism obfuscating the facts of a defendant’s case and generating adverse consequences at odds with congressional purpose. These pragmatic concerns are also on display in the mens rea context, where Justice Alito has taken exception to the Court apparently hiding the ball or contorting statutory language. Throughout his service on the Court, Justice Alito has adopted a decidedly non-abstract approach to interpreting mens rea. Even where he is willing to be guided by a default “general presumption”—such as that a statutorily “specified mens rea applies to all the elements of an offense”—he pragmatically insists on leaving room for “instances in which context may well rebut that presumption.”[100] As the following cases reflect, “context” to Justice Alito typically entails the possibility of “odd results,” the risk of opening the floodgates of litigation, and the need for clear and stable precedent.[101]

A revealing example is Justice Alito’s dissent in Elonis v. United States, decided in 2015.[102] In Elonis, the defendant was convicted of violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”[103] After his wife left him, Elonis posted rap songs on Facebook containing violent imagery.[104] Although Elonis included disclaimers about his innocent intentions, his wife sought a state-court order of protection.[105] Elonis remained undeterred.[106] At issue was the proper mens rea corresponding to Elonis’s communication of the threat. The statute itself was silent on what mens rea (if any) was required regarding the threat itself, but the Third Circuit inferred that the appropriate level of mens rea was negligence—the lowest level of mens rea.[107] In other words, the government had to show that Elonis was negligent with respect to the threatening nature of his communications.

In an opinion by Chief Justice Roberts, the Supreme Court reversed, finding that a mental state higher than negligence should have been inferred. Invoking its strict-liability precedents,[108] the Court observed “the conventional requirement for criminal conduct [is] awareness of some wrongdoing.”[109] This conventional requirement instructs reluctance to infer a negligence standard.[110] The silence on mens rea in the prohibition Elonis was convicted of violating did “not mean that none exists” and “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.”[111] After correctly noting that the negligence standard adopted by the Third Circuit did not require the government to prove that Elonis was in fact aware of the threatening nature of his behavior, merely that he was negligent toward its threatening nature, the majority opinion then concluded only that negligence is insufficient for liability under § 875(c).[112]

Quite deliberately, the Court did not answer whether recklessness, knowledge, or purpose would suffice for liability under § 875(c).[113] In light of the brief lip service to this question during oral argument and there being “no circuit conflict over the question” in the majority’s view, a merits decision on the precise mens rea required under § 875(c) was inappropriate.[114]

Without missing a beat, Justice Alito picked up on the Court’s omission. Noting that Marbury v. Madison’s had “famously proclaimed” that the judicial department must “say what the law is,” Justice Alito said the majority opinion had failed in that regard and instead had announced, “It is emphatically the prerogative of this Court to say only what the law is not.”[115] The Court’s decision not to clarify the required mens rea under § 875(c) “is certain to cause confusion” and “regrettable consequences” among the lower courts.[116] Unlike the Supreme Court, which “has the luxury of choosing its docket,” lower courts and juries “must actually decide cases,” which means “applying a standard.”[117] Elonis and the government had in fact both briefed the issue of mens rea, and if the Court thought it lacked sufficient information to reach a merits decision, it could have ordered further briefing and argument.[118]

Concurring in the judgment, Justice Alito would have found that recklessness is enough. He largely agreed with the majority’s default presumption that § 875(c)’s silence as to mental state should require a mens rea more than mere negligence. Following the Model Penal Code, Justice Alito would infer recklessness “when Congress does not specify a mens rea in a criminal statute,” but go no further toward knowledge or purpose.[119] In his view, “[t]here can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct.”[120] Justice Alito might have also cited the colloquy that he had at oral argument with Deputy Solicitor General Michael Dreeben concerning what Justice Alito referred to as the Model Penal Code’s “razor-thin distinction[s]” between purpose and knowledge and the “considerable difference between” knowledge and recklessness.[121] Depending on the proper level of mens rea, the government’s burden could therefore vary significantly without further instruction from the Court.

Failure to reach an answer on the proper level of mens rea would also have plain adverse consequences, the Justice explained. If purpose or knowledge is required under § 875(c) and a district court instructs the jury that recklessness is sufficient, a defendant may be wrongfully convicted. Yet, if recklessness is enough under § 875(c) and a district court instructs the jury that proof of knowledge or purpose is required, a guilty defendant may be acquitted. With “[a]ttorneys and judges . . . left to guess,”[122] all parties—defendants included—are left in the lurch because the majority decided that hiding the ball (or stopping it short of the goal) was more prudent than reaching the mens rea merits question.

Four years later, in Rehaif v. United States, Justice Alito expressed similar, though distinct, concerns that the Court’s novel reading of the commonly charged firearm-in-possession prohibition[123] would both make it extremely difficult to prove mens rea in many cases, as well as “open[] the gates to a flood of litigation.”[124] Hamid Rehaif had entered the United States on an immigrant student visa, but after receiving poor grades he was kicked out of his university and forfeited his immigration status.[125] Thereafter, Rehaif visited a firing range, and he shot two firearms.[126] The government then charged Rehaif under 18 U.S.C. § 922(g), which provides “[i]t shall be unlawful for any person . . . who [inter alia], being an alien is illegally or unlawfully in the United States[,] . . . [to] possess in or affecting commerce, any firearm or ammunition.”[127] Under the relevant sentencing provision, § 924(a)(2), “[w]hoever knowingly violates” § 922(g) “shall be fined . . . [or] imprisoned not more than 10 years, or both.”[128] The question presented to the Supreme Court was whether the government only had to prove that Rehaif “knowingly” possessed a firearm, or whether the government additionally had to prove Rehaif had a mens rea of knowledge as to his status as “an alien . . . illegally or unlawfully in the United States.”[129]

The majority, in an opinion by Justice Breyer, answered in the affirmative: under § 922(g) the government had to prove both that Rehaif knew he was in possession of a firearm and of his status as an unlawful alien. The Court adopted this interpretation for several reasons, including its “ordinary presumption in favor of scienter”[130] and the grammatical construction of the statute.[131] Because the government failed to show Rehaif knew of his immigration status, the Court reversed Rehaif’s conviction and remanded to the lower court.

One immediate consequence of the Court’s decision in Rehaif was the decision’s retroactive application. Because Rehaif placed knowing possession of a firearm without knowledge of one’s immigration status beyond the reaches of the extant federal criminal law, the decision would apply retroactively under the rule of Teague v. Lane, permitting individuals currently imprisoned under § 922(g) to challenge the validity of their convictions within one year on federal collateral review.[132] Defendants on direct review of § 922(g) convictions could also seek new trials on this basis.

Justice Alito dissented, joined by Justice Thomas. He began by critiquing the majority so “casually” overturning an interpretation of § 922(g) “adopted by every single Court of Appeals” and “used in thousands of cases for more than 30 years.”[133] The Court’s decision was “no minor matter” and disabled one of the nation’s chief tools “to combat gun violence.”[134] Moreover, the decision would create a “mountain of problems” and “swamp the lower courts” with thousands of prisoners seeking collateral relief on the claim that their § 922(g) convictions were defective for failure to charge or prove knowledge with respect to their status.[135] Justice Alito, of course, recognized that the Court must enforce the laws of Congress “even if we think that doing so will bring about unfortunate results,” but usually the Court requires “clear indication of congressional intent” before wreaking such havoc.[136] Yet, in Rehaif, the Court was intrigued by a “superficially appealing but ultimately fallacious argument” and diverged from its usual practice of resolving conflicts among the lower courts, and preserving a long-established interpretation absent evidence that it had “worked any serious injustice.”[137]

Justice Alito tried to set the record straight after the majority presented a “bowdlerized version of the facts.”[138] The Court, in his view, sought to paint an “entirely imaginary case, a heartless prosecution,” that would evoke sympathy for the Court’s ultimately baseless statutory construction.[139] In yet another clear nod to legal realism, the Justice explained that in fact, Rehaif was not a down-on-his-luck immigrant student. Rather, after his expulsion and visa revocation, Rehaif moved into a hotel facing the airport, paid more than $11,000 in cash for his lodging, and frequented a firing range over the course of fifty-three days.[140] Justice Alito appeared perturbed that the Court was pulling the wool over readers’ eyes, stretching and molding the story of a relatively unsympathetic defendant to produce a defendant-friendly decision at odds with thirty years of precedent and with untoward consequences. These sentiments undoubtedly remind us of his categorical-approach jurisprudence, which critiques the Court for proscribing review of the full factual record and only permitting “bowdlerized” Shepard documents to reveal the facts underlying a conviction.

Justice Alito’s penchant for pragmatism is perhaps matched by his knack for metaphor—in Mathis analogizing the categorical approach to a discombobulated GPS, and in Rehaif, analogizing the majority’s “purportedly textualist argument” to “a magic trick.”[141] Because the firearm-in-possession statute’s “knowing” mens rea requirement is housed in § 924(a)(2)—an entirely separate provision from the firearm-possession prohibition itself, which is in § 922(g)—“any attempt to combine the relevant language” of the two statutory provisions “necessarily entails significant choices that are not dictated by the text of those provisions.”[142] Rehaif naturally preferred applying the knowledge requirement broadly to include the status elements of § 922(g), because this would increase the government’s burden. The Court fell for the defendant’s move, which Justice Alito referred to as the trick “presto chango.”[143] But Justice Alito asserted that “[t]he truth behind the illusion,” is that under ordinary usage, four different readings of the statute are possible.[144] The majority’s sleight of hand was to suggest that among the four plausible interpretations, Congress intended for the option with “a very high mens rea requirement,” requiring knowledge for the status element.[145]

While this might not make much difference in many cases where the § 922(g) status at issue is unlawful presence in the country, it would enormously increase the government’s burden in prosecuting the most common firearm-possession crime, where the possessing defendant is a convicted felon. The government would now need to prove that the defendant knew he had been convicted not just of a crime, but of a crime within the category of “felony.”[146] Typically, to avoid the introduction of evidence concerning a prior offense, a defendant will stipulate to his felon status, but after Rehaif, the prosecution may need to offer evidence about the nature of the prior felony to allow the jury to infer knowledge—quite a defendant-unfriendly consequence of the majority’s holding.[147] Moreover, if the knowledge requirement of a gun-possessor’s status also applies to the prohibition on sale of firearms to persons falling within a § 922(g) category,[148] it seems highly unlikely that most sellers will know whether the purchaser falls into one of the § 922(g) status categories.[149] Finally, the Court’s decision contravenes the “practical unanimity” of the courts of appeals on these questions; instead the Court invented hypothetical, conflicting interpretations on its way to approving an interpretation that no circuit had thought to adopt.[150]

Echoing his concerns in the residual-clause context discussed previously,[151] Justice Alito’s most prominent concern with Rehaif was its inevitable opening of litigation floodgates. Because the Court’s decision applied retroactively,[152] the “[t]ens of thousands of prisoners . . . currently serving sentences for violating 18 U.S.C. § 922(g)” may be eligible for relief, such as a new trial if the case is still on direct review or even release through collateral review under 28 U.S.C. § 2255.[153] Those currently imprisoned for § 922(g) convictions may have their convictions vacated if they can demonstrate they are innocent of violating § 922(g), which, after Rehaif, only requires showing they did not know they fell into a § 922(g) status category. The requirement that district courts “hold a hearing . . . and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime” many years before “will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing.’”[154] This too will not “necessarily be limited to § 922(g)” and may spread to other statutes, Justice Alito worried.[155]

Lower courts, prosecutors, and defendants would all pay the price of the Court’s purportedly textualist decision, and Justice Alito quantified the number of § 922(g) offenders that could raise Rehaif claims. According to the U.S. Sentencing Commission, in fiscal year 2020 alone, that number was 6,782 individuals.[156] Justice Alito’s concern with the real-world consequences of Rehaif evince his hesitance to destabilize or set unclear precedents, especially in a case like Rehaif where there was no lower-court conflict warranting the Court’s review.

As Justice Alito prophesied in 2019, Rehaif’s effects have now reached well beyond the ambit of § 922(g) status offenses. This past Term, in Ruan v. United States, the Court applied Rehaif’s “mens rea canon,” as Justice Alito dubbed it, whereby “the Court interprets criminal statutes to require a mens rea for each element of an offense ‘even where the most grammatical reading of the statute does not support’ that interpretation.”[157] In Ruan, the relevant provision of the Controlled Substances Act (CSA) makes it a federal crime “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance.”[158] The majority held that the mens rea requirement (“knowingly or intentionally”) applied to the “except as authorized” provision, requiring the government to prove beyond a reasonable doubt that a defendant “knew that he or she was acting in an unauthorized manner, or intended to do so.”[159] The majority offered four justifications for this interpretation,[160] although as Justice Alito points out, “[i]t bases this conclusion not on anything in language of the CSA” but rather the mens rea canon established in Rehaif.[161]

To Justice Alito, the Court’s effort to apply the mens rea canon to the CSA “rests on an obvious conceptual mistake.”[162] The “[e]xcept as authorized” clause represents an affirmative defense, not an element, and the mens rea canon is inapt in this context.[163] Alito bases this interpretation on several factors. First, “[a]s a matter of elementary syntax,” the “knowingly and intentionally” clause modifies the verbs that follow and do not operate backwards to the “introductory phrase ‘except as authorized.’”[164] As Justice Alito quipped at oral argument, “[W]e are interpreting statutes and regulations, and maybe we ought to start with what they actually say.”[165] Second, the authorization clause “lacks the most basic features of an element of an offense,” such as mandatory inclusion in every § 841 indictment.[166] Yet, the CSA specifically provides that it is not “necessary for the United States to negative any exception or exception set forth in [the relevant subchapter],” implying the authorization clause lacks one of the key indicia of statutory elements.[167] Third, the authorization clause operates as a proviso giving “justification or excuse” for conduct that otherwise satisfies the elements of an offense.[168] Under the Court’s precedents, “an exception made by a proviso” designates an “affirmative defense that the Government has no duty to ‘negative.’”[169] Fourth, the majority, without reference, reverses the common-law rule that defendants bear the burden of production and persuasion of any affirmative defense by instead holding the government must prove unauthorized use beyond a reasonable doubt after a defendant has made a showing that their activity was authorized.[170]

In this most recent example of Justice Alito’s mens rea jurisprudence we observe two of his trademarks. First, the Justice recoils at the Court’s expansion of the judicial role at the expense of Congress. By reading mens rea into every provision of a criminal statute to craft criminal offenses in a “sound” and “just” manner, the Court has effectively usurped Congress’s role in defining the elements of a criminal offense.[171] Not to mention the majority’s trampling of ordinary usage and grammar. The Ruan Court also stumbled over the subtle distinction between the mens rea canon illuminating what Congress intended to include as an element and what the Justices want to include as an element as a matter of lenity. A Court capable of rewriting criminal statutes proves hard to square with the Constitution’s command of separation of powers.

Second, and relatedly, Justice Alito warns that when the Court reaches for a “sound” or “just” result in the criminal law, it ignores the cascading consequences. The Ruan Court’s elision of the element / affirmative defense distinction in the name of lenity makes it unclear “[h]ow many other affirmative defenses might warrant similar treatment.”[172] Such a blasé attitude toward fundamental criminal-law concepts “leaves prosecutors, defense attorneys, and the lower courts in the dark.”[173]

* * *

So, what are we to make of Justice Alito’s mens rea jurisprudence? A common thread (reminiscent of his categorical-approach jurisprudence) is an abiding concern with the Supreme Court engaging in theoretical expeditions at great cost to the administration of criminal law. Whether it is befuddling lower courts as in Elonis, inviting dubious collateral attacks as in Rehaif, or confusing the status of statutory affirmative defenses as in Ruan, Justice Alito is often one of the few voices on the Court calling out real-world consequences.

Moreover, the Justice is clearly concerned not just with the lower courts, but also the victims of crimes. As Justice Alito has asked advocates in oral argument, “[W]hat do you say to the amici who say that if your position is adopted, this is going to have a very grave effect . . . . [Are] they[] just wrong, they don’t understand the situation?”[174] Dashing any air of pretension, he directs advocates to quantify the concrete effects of their preferred position, asking in Rehaif, for example, “[h]ow many people are now serving time in federal prison under the felon-in-possession statute?”[175] Or in Ruan, asking whether the petitioner’s interpretation of the CSA would require dismissal of “all the other indictments” in every case the Department of Justice brought under the relevant provision.[176] With such high practical stakes on the line, Justice Alito prefers to prioritize context over abstraction, and reality over theory.

IV.           Conclusion

In opening this chapter, I noted that Justice Alito is a natural judge. By this I meant that Justice Alito conceives of his job as getting a case right and not “winning.” As a former Department of Justice employee, U.S. Attorney for the District of New Jersey, and Third Circuit Judge, Justice Alito is well-versed in how a Supreme Court opinion coming down from on high can wreak havoc on people working in or confronting the nation’s criminal-justice system. In his categorical-approach and mens rea jurisprudence, Justice Alito has demonstrated a discerning sense of how a particular decision can unleash a chain reaction of negative consequences borne by the lower courts, prosecutors, defendants, and victims. He abjures pure textual formalism in statutory interpretation, if, for instance, giving shrift to a curious and perhaps errant comma would produce real-world results that are arbitrary, inconsistent, and contrary to Congress’s evident purpose in enacting the statute.

It’s hard to neatly define the Justice’s pragmatism, but his criminal-law jurisprudence reveals an unyielding commitment to avoid prejudging a case without a full accounting of the facts, the statutory landscape, and the practical consequences. Justice Alito’s refusal to give in to the “cavalier treatment of . . . important question[s]”[177] has secured his position as the Justice who steadfastly acknowledges real-world consequences and Congress’s purpose in the criminal law. Often through his concurrences and dissents, Alito has served as the Court’s criminal-law oracle, time and again accurately predicting how the Court’s decisions prioritizing abstraction over text and practical consequences will yield adverse consequences. But there is nothing supernatural about his prophecies. Justice Alito is simply a natural when it comes to judging, thinking two steps ahead of the curve.

^* Lafayette S. Foster Professor of Law, Yale Law School. I thank several Yale Law School students who aided my efforts to understand the complex layers of the “categorical” approach and Justice Alito’s concerns about this doctrine—Sarah Jeon ’23, Caroline Lefever ’24, and Valerie Silva Parra ’23. I especially want to acknowledge and thank Joshua Altman ’22 for his prodigious research and our many conversations about Justice Alito’s jurisprudence.

[2] Antonin Scalia, A Matter of Interpretation 13 (1997).

[3] As discussed in Part I, infra, the categorical approach also applies in the context of defining certain substantive criminal offenses. See, e.g., United States v. Davis, 139 S. Ct. 2319 (2019); United States v. Taylor, 142 S. Ct. 2015 (2022).

[4] Manuel v. City of Joliet, 580 U.S. 357, 385 (2017) (Alito, J., dissenting).

[5] Mathis v. United States, 579 U.S. 500, 538, 543 (2016) (Alito, J., dissenting).

[6] Armed Career Criminal Act of 1984, Pub. L. No. 98-473, 98 Stat. 2185, amended by Career Criminals Amendment Act of 1986, Pub. L. 99-308, 100 Stat. 459 (codified as amended at 18 U.S.C. § 924(e) (2018)). The Armed Career Criminal Act (ACCA) has proven fertile ground for successful criminal appeals over the decades, and in recent Terms, the Supreme Court has continued to grant certiorari in ACCA cases. See, e.g., Johnson v. United States, 576 U.S. 591 (2015) (voiding ACCA’s residual clause on Due Process grounds); Welch v. United States, 578 U.S. 120 (2016) (holding that Johnson applies retroactively on federal collateral review under 26 U.S.C. § 2255 (2018)); Borden v. United States, 141 S. Ct. 1817 (2021) (holding that under ACCA’s elements clause, a criminal offense with a mens rea of recklessness does not qualify as a “violent felony”); Wooden v. United States, 142 S. Ct. 1063 (2022) (holding that a criminal defendant’s ten prior burglary offenses—all of which arose from a single criminal episode—did not constitute distinct “occasions” and thus counted as a single prior conviction for ACCA purposes).

Although the categorical approach is most closely associated with ACCA, it also operates with respect to some substantive provisions of the criminal code that define the very federal crime of which the defendant has been convicted. See, e.g., United States v. Davis, 139 S. Ct. 2319 (2019) (applying the categorical approach to 18 U.S.C. § 924(c)(3) (2018)); United States v. Taylor, 142 S. Ct. 2015, 2020–21 (2022) (applying the categorical approach to hold that attempted Hobbs Act robbery does not constitute a “crime of violence” under § 924(c)(3)(A)’s elements clause, which prohibits use of a firearm in connection with a “crime of violence”); see also infra notes 51–55, 80–84, discussing the categorical approach’s application to substantive criminal offenses outside of the ACCA ambit in Davis and Taylor).

The categorical approach is also central to immigration law, where courts determine whether an immigrant’s prior convictions may trigger removal. See, e.g., 8 U.S.C. § 1227(a)(2)(B)(i) (2018) (authorizing deportation of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance”); id. § 1227(a)(2)(A) (authorizing deportation of an alien convicted of crimes of moral turpitude, multiple criminal convictions, and aggravated felony, among other crimes). As such, the categorical approach’s pedigree may stretch back as far as the early twentieth century in the immigration context despite the Supreme Court’s more active use of this tool over the last thirty years. See Mellouli v. Lynch, 575 U.S. 798, 805–06 (2015) (“The categorical approach ‘has a long pedigree in our Nation’s immigration law.’ As early as 1913, courts examining the federal immigration statute” assessed past criminal convictions based on analysis of the statutory offense, not the underlying facts of the case (quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).).

With immigration statutes incorporating provisions of the criminal code, the Court’s use of the categorical approach in the criminal context may generate collateral consequences in immigration law. For example, if the Court has struck down a criminal provision using the categorical approach, immigration consequences will follow. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (striking the residual clause of 18 U.S.C. § 16(b) as unconstitutionally vague under the categorical approach in Johnson v. United States, 576 U.S. 591 (2015)); see also infra notes 46–55 and accompanying text (discussing the Johnson line of cases concerning the constitutionality of various residual clauses).

[7] 18 U.S.C. § 924(a)(2) (2018).

[8] Id. at §§ 922(g)(1), 924(e)(1).

[9] Taylor v. United States, 495 U.S. 575 (1990).

[10] As discussed below, see infra notes 24–27 and accompanying text, the “modified” categorical approach permits a federal court to look both to the statute of conviction and a “limited list of judicial sources,” referred to as Shepard documents. U.S. Sent’g Comm’n, Primer on Categorical Approach 2 (2021), https://perma.cc/BL47-X3EE; see Shepard v. United States, 544 U.S. 13 (2005).

[11] U.S. Sent’g Comm’n, supra note 10, at 1–2.

[12] See supra notes 8–10 and accompanying text.

[13] H.R. Rep. No. 98-1073, at 1 (1984); see also S. Rep. No. 98-225 (1983).

[14] H.R. Rep. No. 98-1073, at 1 (1984).

[15] 18 U.S.C. § 924(e) (2018).

[16] Id. § 922(g).

[17] In § 924(e), Congress has provided broad categories of what constitutes a “violent felony,” but it has provided few other details. A prior offense may constitute a violent felony if it falls within the elements clause of § 924(e)(2)(B)(i) (defining a violent felony to include an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another”) or within the enumerated-offenses clause of § 924(e)(2)(B)(ii) (defining a violent felony to include an offense that “is burglary, arson, or extortion, involves use of explosives”). In 2015, the Court held that the so-called “residual clause” of ACCA is unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015) (Scalia, J.) (holding 18 U.S.C. § 924(e)(2)(B)(ii) unconstitutional on the grounds of vagueness. That provision defined a “violent” felony to include an offense that “involves conduct that presents a serious potential risk of physical injury to another”).

[18] 495 U.S. 575 (1990).

[19] Id. at 578–79.

[20] Id. at 600.

[21] Id.

[22] Id. at 602.

[23] Id. at 599–600.

[24] Id. at 601.

[25] The rule of Apprendi v. New Jersey, 530 U.S. 466 (2000) (Scalia, J.), would not surface until ten years after the Supreme Court’s adoption of the categorical approach in 1990. The interplay between the two lines of doctrine is complex. For the most part, the Court has resisted the suggestion that sentencing judges peering into the factual record would violate Apprendi’s requirements of jury fact-finding and proof beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. As Justice Alito and others have noted, the categorical approach—as well as the modified categorical approach discussed below, see infra notes 24–27 and accompanying text—is more akin to statutory interpretation than to the judicial fact-finding addressed in Apprendi. To be sure, however, there is disagreement on this question. Compare James v. United States, 550 U.S. 192, 213–14 (2007) (Alito, J.) (noting that the categorical approach is statutory interpretation and thus not subject to Apprendi), and Moncrieffe v. Holder, 569 U.S. 184, 198 (2013) (Sotomayor, J.) (“But those [Apprendi] concerns do not apply in this context. Here we consider a ‘generic’ federal offense in the abstract, not an actual federal offense being prosecuted before a jury. Our concern is only which facts the CSA relies upon to distinguish between felonies and misdemeanors, not which facts must be found by a jury as opposed to a judge, nor who has the burden of proving which facts in a federal prosecution.”), with James, 550 U.S. at 231 (Thomas, J., dissenting) (dissenting on the ground that ACCA runs afoul of Apprendi because its sentencing enhancements require judges to “make a finding that raises [a defendant’s] sentence beyond the sentence that could have lawfully been imposed by reference to facts bound by the jury or admitted by the defendant.” (citing United States v. Booker, 543 U.S. 220, 313 (2005) (Thomas, J., dissenting)).

Justice Alito suggested in a recent case that the Apprendi-motivated push to adopt the categorical approach is inconsistent with the original meaning of the Sixth Amendment, which more likely envisioned sentencing as largely discretionary. See United States v. Taylor, 142 S. Ct. 2015, 2033 n.1 (2022) (Alito, J., dissenting) (first citing Michael McConnell, The Booker Mess, 83 Denver U. L. Rev. 665, 679 (2006)); then citing Jonathan Mitchell, Apprendi’s Domain, 2006 Sup. Ct. Rev. 297, 298–99; then citing Rory K. Little & Teresa Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing, 17 Fed. Sent’g Rep. 69, 69–70 (2004); and then citing Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1123–32 (2001)).

Moreover, Apprendi concerns do not underlie all categorical-approach cases. For example, in the context of § 924(c) substantive offenses, the jury, not a sentencing judge, will determine whether a defendant’s conduct amounted to a “crime of violence” in breach of § 924(c)’s prohibition against use of a firearm in connection with a “crime of violence.” See Taylor, 142 S. Ct. at 2026–33 (2022) (Thomas, J., dissenting); id. at 2033 n.1 (Alito, J. dissenting) (“[N]o Sixth Amendment concern is implicated under § 924(c).”).

[26] Taylor, 495 U.S. at 590.

[27] Id. at 589.

[28] Shepard, 544 U.S. at 26.

[29] See Mathis v. United States, 579 U.S. 500 (2016); Descamps v. United States, 570 U.S. 254, 258 (2013). The Court permits review of such documents where a statute is “divisible,” meaning it contains several different offenses or alternative elements under which a conviction may be sustained. See U.S. Sent’g Comm’n, supra note 10, at 9–10. Yet, where a statute describes a single crime and enumerates alternative means of committing the crime, the statute is considered indivisible, and the court may not use Shepard documents as permitted under the modified categorical approach. Id. at 3. However, if a statute of prior conviction is divisible (meaning Shepard documents are fair game), the Court has indicated that the sentencing court should look to the “least of [the divisible] acts” under the statute as the point of comparison to the federal statute. Johnson v. United States, 559 U.S. 133, 137 (2010).

[30] James, 550 U.S. 192.

[31] 553 U.S. 377 (2008).

[32] James, 550 U.S. at 207–08.

[33] Rodriquez, 553 U.S. at 388.

[34] Id. at 389.

[35] Id.

[36] 559 U.S. 133, 136–38 (2010).

[37] Id. at 136.

[38] Id. at 137.

[39] Id. at 137.

[40] Id. at 140.

[41] Id. at 138–40.

[42] Id. at 147–48 (Alito, J., joined by Thomas, J., dissenting).

[43] Id. at 151.

[44] Id. at 152.

[45] Id. at 145 (majority opinion).

[46] Id. at 152 (Alito, J., joined by Thomas, J., dissenting).

[47] 18 U.S.C. §§ 921(a)(33)(A)(ii), 922(g)(9) (2018).

[48] 8 U.S.C. § 1227(a)(2)(E) (2018); 18 U.S.C. § 16(a) (2018).

[49] See, e.g., 18 U.S.C. §§ 16(b), 924(c)(3)(B), 924(e)(2)(B)(ii) (2018); see also supra note 16 and accompanying text.

[50] United States v. Davis, 139 S. Ct. 2319, 2326 (2019) (Gorsuch, J.) (invalidating the residual clause of the federal felon-in-possession statute).

[51] 576 U.S. 591, 592 (2015).

[52] Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Kagan, J.) (concerning California first-degree burglary).

[53] Davis, 139 S. Ct. 2319 (concerning the use of firearms in connection with a federal crime of violence).

[54] 18 U.S.C. § 924(c)(1)(A) (2018).

[55] Id.

[56] Davis, 139 S. Ct. at 2354 (Kavanaugh, J., joined in part by Roberts, C.J., Thomas & Alito, JJ., dissenting).

[57] Id. at 2353–54 (citing cases).

[58] Id. at 2355.

[59] 136 S. Ct. 2243, 2266 (Alito, J., dissenting).

[60] Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L. Rev. 507, 513 (2019).

[61] Compare 18 U.S.C. § 924(e) (2018), with Iowa Code § 702.12 (2013). See generally supra notes 24–27 and accompanying text.

[62] Mathis v. United States, 579 U.S. 500, 503 (2016) (Kagan, J.) (emphasis added); see also supra note 27 and accompanying text. What’s more, Justice Alito has also held the Court to account when it fails to properly adhere to its modified-categorical-approach precedents. In United States v. Taylor, for example, the majority overlooked the fact that § 924(c)(3)(A)’s definition of “crime of violence” contains disjunctive elements, which would typically trigger the modified categorical approach. 142 S. Ct. 2015, 2033–37 (2022) (Alito, J., dissenting). In Taylor, applying the approach of Shepard, Justice Alito looked to Taylor’s plea agreement, which admitted that Taylor “and his accomplice intended to lure [the victim] into an alleyway, hold him at gunpoint, and take his money ‘by force’ in the event that he resisted.” Id. at 2036. In the Justice’s view, this should have been more than enough “to show that Taylor’s actual crime ‘ha[d] as an element the . . . use of physical force against the person . . . of another” under § 924(c)(3)(A). Id.

Justice Alito’s willingness to remind the Court of its own precedents recalls recent administrative-law cases where Justice Alito has noted the Court’s failure to even mention Chevron deference where such deference is likely owed to a federal agency’s interpretation of a statute. See Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Alito, J., dissenting) (“[T]he Court’s decision implicates the status of an important, frequently invoked, once celebrated, and now increasingly maligned precedent, namely, Chevron . . . [but] the Court, for whatever reason, is simply ignoring Chevron.” (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984))). This Term, the Court arguably continued its sub silentio overruling of Chevron in West Virginia v. EPA (this time with Justice Alito joining in Justice Gorsuch’s concurrence). 142 S. Ct. 2587 (2022). In this case, the Court refused to defer to the EPA’s interpretation of the Clean Air Act as permitting the promulgation of carbon-emission caps based on a generation-shifting approach. Id. Instead, the majority held that through the Clean Air Act Congress did not intend to house such authority in the EPA because carbon-emissions regulation represents a “major question” of “economic and political significance” best left for congressional resolution absent an unambiguous delegation to an agency. Id. at 2605 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Justice Alito joined Justice Gorsuch’s concurrence, which made no mention of Chevron but supplied further support for the majority’s use of the major-questions doctrine. In her dissent, Justice Kagan critiqued the majority for failing to follow the Court’s Chevron precedent, specifically “step one” of the Chevron framework where courts are meant to apply the “normal principles of statutory interpretation” before reaching substantive canons of interpretation, such as the major-questions doctrine. See id. at 2635 (Kagan, J., dissenting).

[63] Mathis, 579 U.S. at 503–05.

[64] In addition to the dissenting Justice Alito, Justice Breyer, joined by Justice Ginsburg, also rejected the “means/elements distinction” in a separate dissent. See id. at 523 (Breyer, J., joined by Ginsburg, J., dissenting).

[65] Id. at 501 (majority opinion) (quoting Richardson v. United States, 526 U.S. 813, 817 (1999)).

[66] Id. at 510–513.

[67] Id. at 536–537 (Alito, J., dissenting).

[68] Id. at 538.

[69] Id.

[70] Id. n.2 (citing Descamps v. United States, 570 U.S. 254 (2013)).

[71] Id. (citing Moncrieffe v. Holder, 569 U.S. 184 (2013)).

[72] 575 U.S. 798, 813–14 (2015) (Thomas, J., joined by Alito, J., dissenting).

[73] Id. at 808–13 (majority opinion).

[74] United States v. Taylor, 142 S. Ct. 2015, 2033 (2022) (Alito, J., dissenting).

[75] Mathis, 579 U.S. at 538 (Alito, J., dissenting).

[76] Id. at 540.

[77] Id. at 539; see also Taylor, 142 S. Ct. at 2035 (Alito, J., dissenting) (“The whole point of the categorical approach that the Court dutifully follows is that the real world must be scrupulously disregarded.”).

[78] Id. at 541.

[79] Descamps v. United States, 570 U.S. 254, 281 (2013) (Alito, J., dissenting) (“I would give ACCA a more practical reading. When it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of generic burglary, the conviction should qualify.”).

[80] Mathis, 579 U.S. at 543 (Alito, J., dissenting).

[81] Id. at 543–44.

[82] See, e.g., Borden v. United States, 141 S. Ct. 1817, 1856 (2021) (Kavanaugh, J., joined by Roberts, C.J., Alito & Barrett, JJ., dissenting) (“Because courts use the categorical approach when applying ACCA’s violent felony definition, the Court’s decision today will thus exclude many intentional and knowing felony assaults from those States.”); see also United States v. Davis, 139 S. Ct. 2319, 2337 (2019) (Kavanaugh, J., joined in part by Roberts, C.J., Thomas & Alito, JJ., dissenting).

[83] United States v. Taylor, 142 S. Ct. 2015, 2033 (2022) (Alito, J., dissenting).

[84] Transcript of Oral Argument at 5, 77, Taylor, 142 S. Ct. 2015 (No. 20-1459).

[85] Id. at 5.

[86] Taylor, 142 S. Ct. at 2026 (Thomas, J., dissenting) (quoting Lewis Carroll, Alice in Wonderland and Through the Looking Glass 227 (Julian Messner ed., 1982)).

[87] Id. at 2028; cf. supra notes 31–33 and accompanying text (outlining Justice Alito’s endorsement of the conduct-based approach). Justice Thomas also recommends overruling the Court’s residual-clause decisions, particularly United States v. Davis, 139 S. Ct. 2319 (2019), and adopting a conduct-based approach to § 924(c)(3)(B)’s residual clause that mitigates vagueness worries associated with the categorical approach. Taylor, 142 S. Ct. at 2031–32 (Thomas, J., dissenting).

[88] United States v. Scott, 990 F.3d 94, 125–26 (2d Cir. 2021) (Park, J., concurring).

[89] Id. at 126.

[90] Id. at 126–27 (citing cases).

[91] This case was a follow-on to the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), which held the residual clause of 18 U.S.C. § 924(c) (2018) to be unconstitutionally vague. The defendant in this case had his conviction vacated because of its reliance on the unconstitutional residual clause.

[92] United States v. Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (on remand from the Supreme Court). Although the categorical approach would apply in this case, the Second Circuit vacated the case primarily based on Davis’s holding that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

[93] Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir. 2018) (Pryor, J., concurring).

[94] Id.

[95] But see Davis, 139 S. Ct. at 2354–55 (Kavanaugh, J., concurring) (“[D]efendants who successfully challenge their § 924(c) convictions will not merely be resentenced. Rather, their § 924(c) convictions will be thrown out altogether.”). Davis as well as its follow-on, Taylor are discussed supra at notes 49–55 and accompanying text.

[96] Sanford H. Kadish, Stephen J. Schulhofer & Rachel E. Barkow, Criminal Law and Its Processes: Cases and Materials 258 (2017).

[97] 4 William Blackstone, Commentaries *20–21.

[98] Of course, various jurisdictions recognize strict-liability crimes, where criminal liability is assigned without the government needing to show that the defendant had a culpable mental state with respect to one or more elements. See, e.g., Model Penal Code §§ 1.04(1), (5), 2.05(1) (Am. L. Inst.1986); United States v. Dotterweich, 320 U.S. 277, 281 (1943) (permitting strict liability for public-welfare offenses, “dispens[ing] with the conventional requirement for criminal conduct—awareness of some wrongdoing . . . [i]n the interest of the larger good [by] put[ting] the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger”); Staples v. United States, 511 U.S. 600 (1994) (holding that either of two conditions may be sufficient to permit strict liability with respect to at least one element: either the legislature’s clear intention to dispense with mens rea, or the non-felonious activity in which the defendant engaged was sufficiently dangerous to put the defendant on notice such that those engaging in that activity are not wholly innocent).

[99] Model Penal Code § 2.02(1) (Am. L. Inst. 1986).

[100] Flores-Figueroa v. United States, 556 U.S. 646, 660 (2009) (Alito, J., concurring); see also id. at 659 (“I write separately because I am concerned that the Court’s opinion may be read by some as adopting an overly rigid rule of statutory construction.”).

[101] Id. at 661.

[102] 575 U.S. 723 (2015).

[103] 18 U.S.C. § 875(c) (2018).

[104] Elonis, 575 U.S. at 726–27.

[105] Id. at 728–29.

[106] Id. (noting that after the court’s grant of a “three-year protection-from-abuse order against Elonis,” Elonis subsequently posted, making threatening reference to the order of protection and how he had “enough explosives to take care of the State Police and the Sheriff’s Department”).

[107] Elonis, 575 U.S. at 732 (summarizing the court of appeals’ holding that defendant can be found guilty if “a reasonable person would view [his words] as a threat”).

[108] See supra note 95 and accompanying text.

[109] Elonis, 575 U.S. at 738 (quoting Staples v. United States, 511 U.S. 600, 606–07 (1994)).

[110] Id. (citing Rogers v. United States, 422 U.S. 35, 47 (1975) (Marshall, J., concurring)).

[111] Id. at 734 (quoting Morissette v. United States, 342 U.S. 246, 250 (1952).

[112] Id. at 740.

[113] Id. at 741. (noting that § 875’s mental state requirement would be “satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat” and declining to decide whether “recklessness would [ ] be sufficient” because that issue had not been briefed (emphasis added)).

[114] Id. at 742. By avoiding a holding as to the mens rea required by § 875(c), the Court also avoided the question of whether the First Amendment implications of the statute require a high mens rea level.

[115] Id.at 742 (Alito, J., concurring in part) (emphasis added).

[116] Id.

[117] Id.

[118] Id. at 743.

[119] Id. at 745 (citing Model Penal Code § 2.02(2)(d) (Am. L. Inst. 1986)).

[120] Id. at 745.

[121] Transcript of Oral Argument at 43, Elonis, 575 U.S. 723 (2015) (No. 13-983).

[122] Elonis, 575 U.S. at 742.

[123] 18 U.S.C. § 922(g) (2018). This statute makes it a crime for people with a specified status to possess a firearm. Although the status categories are quite expansive, relevant here are the categories for persons convicted of any felony or being unlawfully present in the United States. See id. § 922(g)(1), (5)(A).

[124] 139 S. Ct. 2191, 2213 (2019) (Alito, J., dissenting)

[125] Id. at 2194 (majority opinion).

[126] Id.

[127] 18 U.S.C. § 922(g) (2018).

[128] Id. § 924(a)(2).

[129] Id. § 922(g).

[130] Rehaif, 139 S. Ct. at 2195 (noting that courts should presume that Congress intends to require mens rea regarding “each of the statutory elements that criminalize otherwise innocent conduct” absent contrary indication (citing United States v. X-Citement Video, Inc. 513 U.S. 64, 72 (1994))).

[131] Id. at 2196.

[132] See 26 U.S.C. § 2255(f) (2018) (providing a “1-year period of limitation” that runs from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”); Teague v. Lane, 489 U.S. 288, 307 (1989) (providing that a new rule “should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’” (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)).

[133] Rehaif, 139 S. Ct. at 2201 (Alito, J., dissenting).

[134] Id.

[135] Id.

[136] Id.

[137] Id.

[138] Id.

[139] Id.

[140] Id. at 2202.

[141] Id. at 2204.

[142] Id.

[143] Id.

[144] Id.

[145] Id. at 2206 (emphasis omitted).

[146] Id. at 2209.

[147] Id. As Justice Alito noted, the requirement that the government prove other § 922(g) statuses, such as felon status, threatens to undo longstanding precedent in the realm of evidence law, that defendants may offer to stipulate a prior conviction to prevent the prosecution from introducing more prejudicial evidence concerning the nature of their conviction. See, e.g., Old Chief v. United States, 519 U.S. 172 (1997).

[148] Id.; see also 18 U.S.C. § 922(d)(5)(A) (2018).

[149] Id.

[150] Id. at 2210.

[151] See supra notes 47–54 and accompanying text.

[152] See supra note 127 and accompanying text.

[153] Rehaif, 139 S. Ct. at 2212–13 (Alito, J., dissenting).

[154] Id. at 2213 (citing Mathis v. United States, 136 S. Ct. 2243, 2269–70 (2016) (Alito, J., dissenting)).

[155] Id.

[156] Quick Facts: Felon in Possession of a Firearm, U.S. Sent’g Comm’n, https://perma.cc/29F3-E6B3.

[157] 142 S. Ct. 2370, 2384 (Alito, J., concurring) (quoting Rehaif, 139 S. Ct. at 2197).

[158] 21 U.S.C. § 841(a) (2018).

[159] Ruan, 142 S. Ct. at 2375.

[160] The majority’s four reasons included (1) the explicit inclusion of a mens rea term in § 841, (2) the importance of the “[e]xcept as authorized” element in “distinguishing morally blameworthy conduct from socially necessary conduct,” (3) the “serious nature of the crime and its penalties,” and (4) the “vague, highly general language of the regulation.” Id. at 2386 (Alito, J., concurring).

[161] Id. at 2383.

[162] Id.

[163] Id.

[164] Id. at 2384.

[165] Transcript of Oral Argument at 22, Ruan, 142 S. Ct 2370 (No. 20-1410).

[166] Ruan, 142 S. Ct at 2385 (Alito, J., concurring).

[167] Id. (citing 21 U.S.C. § 885(a)(1) (2018)).

[168] Id.

[169] Dixon v. United States, 548 U.S. 1, 13 (2006) (quoting McKelvey v. United States, 260 U.S. 353, 357 (1922)).

[170] Id. at 9 (citing Smith v. United States, 568 U.S. 106, 112 (2013)).

[171] Ruan, 142 S. Ct. at 2384 n.* (Alito, J., concurring).

[172] Id. at 2383.

[173] Id.

[174] Transcript of Oral Argument at 60, Elonis v. United States, 575 U.S. 723 (2015) (No. 13-983).

[175] Transcript of Oral Argument at 59, Rehaif v. United States, 139 S. Ct. 2191 (No. 17-9560).

[176] Transcript of Oral Argument at 78, Ruan, 142 S. Ct. 2370 (No. 20-1410).

[177] Ruan, 142 S. Ct at 2383 (Alito, J., concurring).

Erie and Contemporary Federal Courts Doctrine – Jack Goldsmith

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Erie and Contemporary Federal Courts Doctrine

Jack Goldsmith^*

Justice Alito has written many important federal courts opinions but (like most Justices) does not have a distinctive federal courts jurisprudence. He has written most extensively in this field on standing, but his opinions on that topic do not yield a particular theory of standing or even a clear pattern of decision making.[1] His dissent in Ortiz is a commanding statement of the differences between judicial and executive power in the context of the Court’s appellate jurisdiction—but it garnered only one other vote.[2] Justice Alito has, along with Justice Thomas, persistently challenged the Court’s practice of exercising discretion to decline to decide cases within its exclusive original jurisdiction under 28 U.S.C. § 1251(a).[3] And he has taken a notable interest in the Alien Tort Statute (ATS), especially in questioning Sosa’s embrace of a federal common law power to recognize novel causes of action under the ATS.[4]

Justice Alito has also highlighted the ways that a federal courts chestnut, Erie Railroad Co. v. Tompkins, alters how other federal courts doctrines operate compared to an eighteenth and nineteenth century baseline.[5] In this brief essay I will summarize Justice Alito’s takes on Erie’s significance; ask how Erie fits with the Court’s historically inflected constitutional jurisprudence; and then raise questions about how principled the Court has been, and how principled it can be, in its treatment of the common law post-Erie in other federal courts contexts.

I.

Simplifying quite a bit, Erie held that federal courts sitting in diversity jurisdiction lack the authority to develop their own judge-made common law tort rules and thus must apply state common law tort rules. In part, to continue to simplify, this was because the Court declared that the “general common law” that it had applied for 150 years—a law that ostensibly was neither federal law nor state law—no longer existed.[6] With general common law no longer an option, the Court determined that it lacked authority to recognize, develop, or apply any common law tort rule other than the one that prevailed in the state.[7] But following Erie, the Court made clear that federal courts possessed the power to develop a “new” and genuinely federal common law if that law was in some sense authorized by the Constitution or a federal statute.[8]

It is hard to exaggerate what a radical decision Erie was at the time, or how extensively it upended what we today call the field of federal courts. Indeed, eighty-five years after Erie was decided, we are very much still working out its implications, as some of Justice Alito’s opinions make clear.

Consider Justice Alito’s opinion in Jesner, a case that held that foreign corporations cannot be defendants in ATS suits.[9] Justice Alito concurred to explain why he believed that the ATS’s original purpose—to “avoid diplomatic friction”—informed the separation of powers that supported the majority’s rule.[10] Along the way he explained why Erie posed a “problem” for how the ATS was originally designed to operate:

According to Sosa, when the First Congress enacted the ATS in 1789, it assumed that the statute would “have practical effect the moment it became law” because the general common law “would provide a cause of action for [a] modest number of international law violations.” That assumption, however, depended on the continued existence of the general common law. And in 1938—a century and a half after Congress enacted the ATS—this Court rejected the “fallacy” underlying the general common law, declaring definitively that “[t]here is no federal general common law.” Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 79 (1938). That left the ATS in an awkward spot: Congress had not created any causes of action for the statute on the assumption that litigants would use those provided by the general common law, but now the general common law was no more.[11]

The Court in Sosa resolved this problem by trying to approximate the 1789 operation of the ATS through the judicial development of narrow post-Erie federal common law causes of action that aimed to mirror the law of nations that courts applied as general common law in 1789.[12] In Jesner and again in Nestle, Justice Alito expressed sympathy for the view that Sosa was wrong on the ground that, after Erie, Congress, rather than the Court, should provide the cause of action in ATS cases.[13]

Justice Alito made a similar point in his majority opinion in Hernandez, which denied a Bivens claim based on a cross-border shooting.

Analogizing Bivens to the work of a common-law court, petitioners and some of their amici make much of the fact that common-law claims against federal officers for intentional torts were once available. But Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), held that “[t]here is no federal general common law,” and therefore federal courts today cannot fashion new claims in the way that they could before 1938. See [Alexander v. Sandoval, 532 U.S. 275, 287 (2001)] (“‘Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals’”).

With the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, see id. at 286 (“private rights of action to enforce federal law must be created by Congress”), and no statute expressly creates a Bivens remedy. Justice Harlan’s Bivens concurrence argued that this power is inherent in the grant of federal question jurisdiction, see 403 U.S. at 396 (majority opinion); id. at 405 (opinion of Harlan, J.), but our later cases have demanded a clearer manifestation of congressional intent, see [Ziglar v. Abbasi, 137 S. Ct. 1843, 1856–58 (2017)].[14]

For Justice Alito a related issue arose in Maine Community Health Options v. United States.[15] There the Court interpreted a provision in the Affordable Care Act (ACA) to allow insurance companies to bring a Tucker Act suit for damages to recover their ACA-related losses. Justice Alito argued in dissent that this holding was in tension with the Court’s modern requirement of a plain statement to recognize a cause of action. Along the way he stated:

One might argue that the assumptions underlying the enactment of the Tucker Act justify our exercising more leeway in inferring rights of action that may be asserted under that Act. When the Tucker Act was enacted in 1887, Congress undoubtedly assumed that the federal courts would “‘[r]ais[e] up causes of action,’” Alexander v. Sandoval, 532 U.S. 275, 287 (2001), in the manner of a common-law court. At that time, federal courts often applied general common law. But since Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), the federal courts have lacked this power. Yet the “money- mandating” test that the Court applies today, bears a disquieting resemblance to the sort of test that a common-law court might use in deciding whether to create a new cause of action. To be sure, some of the claims asserted under the Tucker Act, most notably contract claims, are governed by the new federal common law that applies in limited areas involving “‘uniquely federal interests.’” Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988). And the recognition of an implied right to recover on such claims is thus easy to reconcile with the post-Erie regime. There may also be some sharply defined categories of claims that may be properly asserted simply as a matter of precedent. But the exercise of common-law power in cases like the ones now before us is a different matter.[16]

II.

These cases, and many like them, raise questions about the modern conservative Court’s posture toward Erie and separation of powers.

Erie is among the most dramatically anti-originalist opinions in Supreme Court history.[17] The Framers assumed, and the Supreme Court for a very long time believed (and held), that federal courts can and should apply what came to be known as “general common law” (or “general law”) in certain suits in federal court in the absence of authorization from the Constitution or a federal statute. What Holmes described in 1928 as a “fallacy” was the firm belief and consistent early practice of the Court. Federal courts were obliged to apply a non-state, non-federal “transcendental body of law outside of any particular State,” the content of which federal courts could determine in “their independent judgment” regardless of the non-statutory law rule that prevailed in state courts.[18] There is some question about how broad this general common law was at the founding.[19] And there is a question about how far into the nineteenth and twentieth centuries this non-positivistic conception of law prevailed.[20] But there is no doubt that the conception of law that Erie said did not “exist” did in fact exist at the founding and for a long time thereafter. And the eighteenth and nineteenth century versions of practically every federal courts doctrine assumed its validity.

Explanations abound for why the Court did what it did in Erie. An important one is that the background conception of the nature of the common law, and of the need for positive sources of law, had changed dramatically since the founding. Without getting into disputes here about the scope of these changes, it is clear that common law at the founding “was perceived as more natural than it is for us today—natural in the sense of being derived from nature and thus being something all people could reason about and, if they reasoned carefully enough, come to view in the same way.”[21] It is also clear that courts at the founding applied many pockets of law, including general common law, without consideration of, or even the need for, some sovereign authorization to do so.[22] By the time of Erie, these understandings about the nature of the common law had been rejected and replaced by the idea that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.”[23] Erie in effect “overruled a particular way of looking at law” and replaced it with another.[24] The federalism and separation of powers alterations in Erie, the implications of which we are still trying to figure out, followed from these changes.[25]

Erie is a challenge to originalism and related historically minded constitutional theories of interpretation because so many constitutional and subconstitutional law doctrines at the founding rested on a conception of general law (and non-positivistic sources of law more generally) that the Court rejected in Erie, and because this rejection led the Court to craft many doctrines—the most obvious of which is the post-Erie federal common law—that would have been unrecognizable at the founding and that are unjustifiable today on originalist terms. The conservative Court is now in the process of rethinking and pushing back on a slew of innovative New Deal structural constitutional law doctrines, but not a single Justice has suggested that Erie should be rethought. Indeed, as Justice Alito’s comments above make plain, the Court, including the conservatives on the Court, has accepted the radical non-originalist change in Erie and are still working out the non-originalist implications for many federal courts doctrines.[26]

III.

The question is whether the Court is working out these non-originalist implications in a principled or coherent way.

The Court’s main move after Erie has been to reconceptualize pre-Erie general common law to require application either of state law or federal common law, depending on the circumstances. Erie itself ruled that courts in private diversity tort cases must apply state law, including state law as articulated by state courts, in place of general common law. In other contexts, the Court in the decades after Erie took a generous attitude toward its new federal common law powers.[27] It also, relatedly, took a generous attitude toward the Court’s power to imply federal causes of action.[28]

In more recent decades, however, the Court has come to view its post-Erie federal common law powers as a threat to Congress’s lawmaking prerogatives. It has significantly narrowed the circumstances in which it will recognize or craft new federal common law rules.[29] And it has insisted that only Congress, and not the Court, can supply a cause of action in statutory and many constitutional contexts.[30]

In short, the Court in these and other contexts has argued, especially in recent decades, that the elimination of general common law in Erie means that it should defer to Congress in the creation, or not, of new federal law and new federal causes of action. The common pattern in these newer cases is that the Court narrows access to federal court.

But in other federal jurisdiction contexts, the Court has taken something close to the opposite approach, albeit also in the service of narrowing access to federal court. The law of standing is a remarkable example.

The Court has recently come to view the common law as the touchstone for standing. Justice Thomas—who more than anyone else on the Court is responsible for this development—explained in his Spokeo concurrence that “[t]he judicial power of common law courts was historically limited depending on the nature of the plaintiff ’s suit.”[31] This is right as far as it goes. Just as common law causes of action required various types of proof, they also sometimes were available only for certain types of plaintiffs. As Justice Thomas has said, “common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more,” but they “required a further showing of injury for violations of ‘public rights’ owed to the whole community (such as passage on public highways).[32] Federal courts applied these common law causes of actions guided by general common law or state law.

One might have thought that after Erie, this cause-of-action-centered structure governing who can sue in federal court would have been replaced by whatever types of cause of action survived Erie. This should have meant that private causes of action such as in Erie would be governed by state law (as opposed to general common law or federal common law). It also should have meant that Congress could supplement or replace common law causes of action (including matters previously governed by general common law) as it saw fit, as long as it acted within its Article I powers. And indeed, this is how things worked until recently. Before and for many decades after Erie, Congress often supplemented the common law to create new causes of action. And what came to be called standing was satisfied when a plaintiff met the requirements of the congressional cause of action.[33] There was nothing like an Article III standing limitation on Congress’s ability to create new causes of action.[34]

But the Court has gone in a quite different direction in recent years. In the 1970s it developed an “injury-in-fact” test for standing. The Court in the 1990s began to question whether and when violation of a congressional right could constitute an injury-in-fact. A seminal case was Lujan, which invalidated a global citizen-suit provision.[35] Then in 2016, the Court in Spokeo, through Justice Alito, identified two factors that were “instructive” in answering whether violation of a congressional right could constitute an injury-in-fact. The first factor was “whether [the harm] has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”[36] The second factor was the “judgment” of Congress, which the Court explained was “also instructive and important.”[37] The Court did not make clear why history and congressional action mattered, how the two factors related to one another, or which was more important.[38]

From Lujan through Spokeo, the Court followed a meandering path on statutory standing and failed to make clear when violation of a federal statutory right counted as an injury-in-fact.[39] But in 2021, the Court in a decisive new majority made the common law the dispositive touchstone for congressional standing under Article III. In TransUnion (which Justice Alito joined), the Court ruled that a statutory right’s “close relationship” to traditional common law suits was not just relevant (as in Spokeo) but “central” and indeed dispositive of whether plaintiff alleged a concrete injury-in-fact.[40] And it reduced Congress’s conferral of a cause of action from “relevant” (as in Spokeo) to something that warranted “due respect” but that in the end was deemed irrelevant.[41] On these premises, the Court held that Article III invalidated Congress’s creation of various personal rights to the proper treatment of private data because the plaintiffs lacked any “historical or common-law analogue for their asserted injury.”[42]

Justice Thomas explained in dissent why the Court, in the name of nineteenth century practice, was unfaithful to that practice. The common law defined rights to sue, but the common law was not the only institution that defined rights to sue.[43] “Congress and other legislatures” also had the power “to define legal rights.”[44] Courts “for centuries held that injury in law to a private right”—including ones created by Congress—“was enough to create a case or controversy.”[45] In a private lawsuit like TransUnion, that should have been the end of the matter, Justice Thomas correctly concluded. This conclusion should have been especially obvious because the Court had so often emphasized, by reference to Erie, that Congress was supreme, vis-à-vis federal courts, in creating new causes of action.

IV.

TransUnion does not directly implicate Erie or Erie problems. However, a slew of other federal courts doctrines that rely on the common law to inform the scope of “the Judicial power” or “Cases” and “Controversies” in Article III—including the scope of the federal injunctive power, state sovereign immunity, and federal officer suits—do directly implicate Erie questions. Together they demonstrate that the Court’s turn toward history and the common law to inform the contemporary meaning of Article III cannot work without consideration of the non-originalist impact of the non-originalist decision in Erie—a requirement that poses a serious challenge to the originalist project across many federal courts doctrines.

Consider the fate of Ex parte Young.[46] The Court and the academy are remarkably confused about the legal basis for and proper scope of the vital injunctive power recognized in that case.[47] Efforts to clarify the doctrine are being fought largely on the ground of historical practice. To simplify a great deal: on one prominent view, Ex parte Young was grounded in the nineteenth century equitable power to issue anti-suit injunctions.[48] On another prominent view, Ex parte Young was grounded in the common law tradition of administrative control through public actions.[49] (There are other views.)

Whatever the right answer to this debate is, assuming there is a coherent one, that answer cannot inform the proper post-Erie exercise of Ex parte Young until one figures out (a) the precise source of authority for courts to apply Ex parte Young-like injunctions prior to Erie (general common law, inherent equitable power under Article III, the Process Acts, no authority at all, something else?) and then (b) how that legal basis was altered by Erie. The answer to question (a) remains elusive even today. Question (b) does not have a principled answer in the post-Erie case law—the answer might plausibly be state law, federal common law, Article III, a federal statute, or something else.[50] And whatever that answer is to (b), it cannot be an answer that is true in any meaningful sense to the founding or nineteenth century practice.

In short, Erie stands as a major obstacle to the originalist project of reimagining Ex parte Young and many other federal courts doctrines. Which is why, I believe, so many originalist scholars seek to question the validity of Erie and to argue for the persistence of general common law.[51] I think these arguments fail, but lack space here to explain why.

^* Learned Hand Professor of Law, Harvard Law School. Thanks to Dominic Solari for outstanding research assistance, and to Richard Fallon, Larry Lessig, Cass Sunstein, and Adrian Vermeule for comments.

[2] Ortiz v. United States, 138 S. Ct. 2165 (2018) (Alito, J., dissenting).

[3] See Texas v. California, 141 S. Ct. 1469 (2021) (Alito, J., dissenting, joined by Justice Thomas); Texas v. Pennsylvania, 141 S. Ct. 1230 (2020) (statement by Alito, J., dissenting, joined by Justice Thomas); Arizona v. California, 140 S. Ct. 684 (2020) (Thomas, J., dissenting, joined by Justice Alito); Nebraska v. Colorado, 577 U.S. 1211 (2016) (Thomas, J., dissenting, joined by Justice Alito).

[4] See Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 1950 (2021) (Alito, J., dissenting) (discussing Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) (Alito, J., concurring in part and concurring in the judgment); Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108 (2013) (Alito, J., concurring). Justice Alito has written many other notable federal courts opinions, including Hernandez v. Mesa, 140 S. Ct. 735 (2020) (declining to extend Bivens to cross-border shootings); Kansas v. Colorado, 556 U.S. 98 (2009) (avoiding ruling on Congress’s authority to regulate remedies in Supreme Court original jurisdiction cases but electing to follow Congress’s established district court procedures); and FAA v. Cooper, 566 U.S. 284 (2012) (inclusion of “actual damages” in Federal Privacy Act did not waive sovereign immunity for suits alleging “mental and emotional distress” because the term was ambiguous and so presumption of immunity prevails).

[5] Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

[6] Id. at 78 (“There is no federal general common law.”).

[7] This is, I think, the meaning of the Court’s statements: “Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, ‘an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.’ In disapproving that doctrine we . . . merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States.” Id. at 79-80.

[8] See Henry J. Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964).

[9] See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1408-12 (2018) (Alito, J., concurring in part and concurring in the judgement).

[10] Id. at 1410.

[11] Id. at 1409 (some internal citations omitted).

[12] Sosa v. Alvarez-Machain, 542 U.S. 692, 729–733 (2004).

[13] This is the position argued by Justice Scalia in dissent in Sosa, by Justice Gorsuch in concurrence in Jesner, and is the direction the Court has been moving since Sosa. Justice Alito stated in Jesner that “[f]or the reasons articulated by Justice Scalia in Sosa and by Justice Gorsuch today, I am not certain that Sosa was correctly decided.” Jesner, 138 S. Ct. at 1409. See also Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 1951 (2021) (Alito, J., dissenting) (noting that “Part III of Justice Thomas’s opinion and Part II of Justice Gorsuch’s opinion make strong arguments that federal courts should never recognize new claims under the ATS” and should instead defer to Congress, but declining to reach the issue because it was not raised).

[14] Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020).

[15] 140 S. Ct. 1308, 1331-35 (2020) (Alito, J., dissenting).

[16] Id. (some internal citations and cross-references omitted).

[17] It is also among the most radical and unexpected. The Court had been applying the 20th century version of the Swift doctrine right up to the term that Erie was decided, and none of the parties asked the Court to reconsider the general common law regime. Yet the Court overruled Swift and, in the process, as Justice Jackson once noted, in effect “declared that thousands of decisions of federal courts, which are no longer subject to correction, were wrongly decided.” Robert H. Jackson, The Struggle for Judicial Supremacy 273 (1941).

[18] Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 532-36 (1928) (Holmes, J., dissenting).

[19] At its core was the law merchant, the law maritime, and the law of nations. These categories later expanded dramatically. See generally Tony Allan Freyer, Harmony & Dissonance: The Swift and Erie Cases in American Federalism (1981).

[20] See Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673, 682-83 (1998).

[21] Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution 223 (2019).

[22] William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1515, 1517-21 (1984).

[23] Black & White Taxicab & Transfer Co., 276 U.S. at 533 (Holmes, J., dissenting).

[24] Guar. Tr. Co. v. York, 326 U.S. 99, 101 (1945).

[25] For a full account of the conceptual and material changes that led to the Court’s massive change of direction in Erie, see Lessig, supra note 21, and previous writings.

[26] Many originalist scholars, by contrast, have grasped Erie’s challenge to originalism and questioned the validity of the decision and its rejection of general common law. See, e.g., Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655 (2013); Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921 (2013); Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527 (2019); Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813 (2012). They have not, in my view, adequately grappled with how thoroughly Erie corrupts originalist and related historical approaches to federal courts doctrines.

[27] See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943).

[28] See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); J.I. Case Co. v. Borak, 377 U.S. 426 (1964).

[29] See, e.g., Rodriguez v. FDIC, 140 S. Ct. 713 (2020); O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994).

[30] See, e.g., Hernandez v. Mesa, 140 S. Ct. 735 (2020); Alexander v. Sandoval, 532 U.S. 275 (2001). For an early insightful account of the Court’s use of Erie to justify these constrictions of judge-made causes of action, see George D. Brown, Of Activism and Erie: The Implication Doctrine’s Implications for the Nature and Role of the Federal Courts, 69 Iowa L. Rev. 617 (1984).

[31] Spokeo, Inc. v. Robins, 578 U.S. 330, 343 (2016) (Thomas, J., concurring).

[32] Id. at 344.

[33] See, e.g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940); Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972); Warth v. Seldin, 422 U.S. 490 (1975); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). See also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2217 (2021) (Thomas, J., dissenting) (“The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder ‘could not show monetary loss.’”).

[34] See Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163 (1992); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371 (1988). Caleb Nelson and Ann Woolhandler have shown that some limitations on common law causes of action in the nineteenth century against federal and state governmental officials sometimes had a constitutional dimension. Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004). But they rest their tentative historical case for Article III limits on Congress’s ability to recognize interests and create causes of action unknown at common law primarily on Muskrat v. United States, 219 U.S. 346 (1911). Muskrat involved a statute that authorized four individuals to sue the United States “to determine the [constitutional] validity” of an earlier statute that had altered property rights on designated Native American land. The Court ruled that the authorized suit sought an impermissible advisory opinion because the Court’s judgment would have been “no more than an expression of opinion upon the validity of the acts in question” and because the United States as designated defendant had “no interest adverse to the claimants.” Id. at 361–62. Even taking Muskrat for all it is worth for modern standing doctrine, which isn’t much, it provides no conceivable basis for the Court’s broad new Article III limitation on new congressional causes of action in the private rights context. See discussion of TransUnion, infra note 42. Justice Thomas, who has relied on the work of Nelson and Woolhandler in developing his theory of standing, see Spokeo, 578 U.S. at 344 (Thomas, J., concurring), has recognized this latter point. See TransUnion, 141 S. Ct. at 2214 (Thomas, J., dissenting).

[35] Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992). See also Summers v. Earth Island Inst., 555 U.S. 488 (2009); Raines v. Byrd, 521 U.S. 811 (1997).

[36] Spokeo, 578 U.S. at 341 (citing Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 775-77 (2000)) (emphasis added).

[37] Id.

[38] Many viewed Spokeo as a compromise decision to avoid a 4-4 split in light of Justice Scalia’s death that Term.

[39] See William Baude, Standing in the Shadow of Congress, 2016 Sup. Ct. Rev. 197 (2016).

[40] TransUnion, 141 S. Ct. at 2200.

[41] Id. at 2205.

[42] Id. at 2204. The Court ruled specifically that Congress cannot give private parties a right to truthful information in the files of credit reporting firms, absent publication to third-parties, because the alleged harms (being identified within the firm as a possible terrorist, and not receiving statutorily guaranteed notice protections), were not ones “with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” Id. at 2213. For accounts of why the “common law analogue” limitation in TransUnion has dramatic implications for the law of standing and for Congress’s ability to create new rights more generally, see Cass Sunstein, Injury In Fact, Transformed, 2021 Sup. Ct. Rev 349 (2022); Erwin Chemerinsky, What’s Standing After TransUnion LLC v. Ramirez, 96 N.Y.U. L. Rev. 269 (2021).

[43] He might also have added that the common law that the Court made the touchstone of standing was not stable in its definition of legal rights.

[44] TransUnion, 141 S. Ct. at 2218 (Thomas, J., dissenting).

[45] Id.

[46] 209 U.S. 123 (1908).

[47] See Green Valley Special Util. Dist. v. City of Schertz, 969 F. 3d 460, 494–502 (5th Cir. 2020) (Oldham, J., concurring).

[48] See John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989 (2008); see also Whole Women’s Health v. Jackson, 142 S. Ct. 522, 540 (2021) (Thomas, J., concurring); Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 262 (2011) (Kennedy, J., concurring).

[49] James E. Pfander & Jacob P. Wentzel, The Common Law Origins of Ex parte Young, 72 Stan. L. Rev. 1269 (2020).

[50] Harrison’s imaginative and influential reconstruction of Ex parte Young devotes a conclusory sentence and footnote to this issue. See Harrison, supra note 48, at 1014 & n. 103.

[51] See supra note 26.

The Prudent Judge – Hon. Steven Menashi

Posted by arispitzer on Apr 24, 2023 in Per Curiam

The Prudent Judge

Hon. Steven Menashi^*

When I was a law clerk to Justice Alito in 2010, the Supreme Court heard oral argument in Brown v. Entertainment Merchants Association.[1] The case concerned whether California could permissibly restrict the sale of violent video games to minors. Justice Scalia suggested the case was easy. “[I]t was always understood that the freedom of speech did not include obscenity,” he told California’s lawyer, but “[i]t has never been understood that the freedom of speech did not include portrayals of violence” and therefore “you’re asking us to create a . . . whole new prohibition which the American people never . . . ratified when they ratified the First Amendment.”[2] How, then, “is this particular exception okay?” he asked.[3]

Alito interjected: “Well, I think what Justice Scalia wants to know is what James Madison thought about video games. . . . Did he enjoy them?”[4]

Commentators have understood the interjection as a criticism of originalism.[5] But I do not think it was. It was a criticism of oversimplification. Scalia had insisted that the courts had experience with, for example, books that depict violence, so the question of what to do with “portrayals of violence” was already settled. As Scalia’s eventual opinion explained, the interactive character of video games is “nothing new” because “all literature is interactive.”[6] Alito took issue with that assumption: “it’s one thing to read a description” of violence, he said at the argument, but “[s]eeing it as graphically portrayed” is another thing, and “doing it” oneself in a virtual reality environment “is still a third thing.”[7] As Alito explained in his own opinion:

No tenet of originalism holds that a judge must obscure the details of the case before him to fit the case more easily into an abstract category that prior cases have addressed. That is a general temptation. To be sure, an originalist might be tempted to treat some historical antecedent as dispositive of the new case. But an adherent of a purposivist approach might also want to define the question at a high level of generality in order to vindicate some broad principle. And it is a constant desire of judges to fit new cases into old precedents. Alito’s objection was to the quick resort to abstraction while failing to take a full account of the circumstances of the individual case before the court. This objection has been a consistent theme in his opinions.[9]

My term as a clerk also saw the emergence of commentators describing Alito as the “Burkean Justice.”[10] That description risks over-theorizing. “Judging is not an academic pursuit,” Alito has cautioned, “[i]t is a practical activity.”[11] But Burkeanism generally stands for the propositions that human life cannot be governed by abstractions[12] and that we should instead respect the complexities of human life and the realities of experience.[13] These principles are also part of a longstanding tradition of judging.[14] Yet on a Supreme Court that—as Alito has put it—could be described as “the most academic in the history of the country,” with a resulting tendency to “tip into the purely theoretical realm,” this tradition appears distinct.[15]

Alito’s commitment to avoiding abstraction and focusing on circumstances finds expression in his opinions. I want to mention a few ways in which Alito’s opinions reflect this judicial method and provide a model for the judicial craft. Part I illustrates Alito’s resistance to resolving cases by reference to high-level abstractions. Part II describes how Alito’s reliance on history reveals a kind of epistemic humility about a judge’s ability to describe lived experience in terms of singular purposes or principles. Part III considers how these features of Alito’s jurisprudence affect his views about adherence to precedent.

I

Justice Alito’s fact-bound approach to judging reflects the view that human life should not be governed by abstractions. Alito has written that “[t]he Constitution gives us the authority to decide real cases and controversies; we do not have the right to simplify or otherwise change the facts of a case in order to make our work easier or to achieve a desired result.”[16] In numerous cases, when one side of the Court would shove the messy facts of a particular case into an abstract category, Alito would focus on the details, often vividly, to illustrate how far the abstraction departs from reality. In the Entertainment Merchants case, he understatedly pointed out that “[t]here are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.”[17] In fact, it seems very different:

Entertainment Merchants was decided the same term as Snyder v. Phelps,[19] another case in which First Amendment generalities obscured the realities on the ground. Considering the case at a high level of generality, the majority could describe the Westboro Baptist Church’s protest of a soldier’s funeral as addressing “matters of public import” such as “the political and moral conduct of the United States and its citizens” and “the fate of our Nation.”[20] Yet Alito explained, with some vivid detail, that “this portrayal is quite inaccurate” and the specific “attack on Matthew [Snyder] was of central importance” to the church’s protest.[21] The majority sought to describe the protest as speech on a matter of public concern, rather than a directed attack on a private person, so it would fit more neatly into an established First Amendment category. But in doing so, Alito pointed out, the majority not only described the facts tendentiously but also ignored significant parts of the record.[22]

Another illustration of Alito’s resistance to abstraction came in Town of Greece v. Galloway,[23] in which the Court concluded that a town could open its monthly board meetings with a prayer. That decision came over the dissent of Justice Kagan. Her dissent opened with a grand invocation of the American commitment to “religious freedom” and asserted that the town of Greece had violated the “norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”[24] The dissent concluded that “the Town of Greece betrayed” that “remarkable guarantee” by “infus[ing] a participatory government body with one (and only one) faith, so that month in and month out, the citizens appearing before it become partly defined by their creed.”[25]

It sounds ominous—and abstract. Alito wrote separately to address the dissent by explaining what exactly happened on the ground. For four years, “a clerical employee in the [town’s office of constituent services] would randomly call religious organizations listed in the Greece ‘Community Guide,’ a local directory published by the Greece Chamber of Commerce, until she was able to find somebody willing to give the invocation.”[26] The employee eventually compiled a list of individuals who had agreed to give the invocation, “and when a second clerical employee took over the task of finding prayer-givers, the first employee gave that list to the second. The second employee then randomly called organizations on that list—and possibly others in the Community Guide—until she found someone who agreed to provide the prayer.”[27] The case became less dramatic when one focused on the actual circumstances of the case rather than a high level of abstraction: “despite all its high rhetoric, the principal dissent’s quarrel with the town of Greece really boils down to this: The town’s clerical employees did a bad job in compiling the list of potential guest chaplains.”[28]

Focusing on the facts of the case also clarified the implications of a holding that the town ought to have required nonsectarian prayer. Such a requirement would have burdened the town by requiring it to prescreen prayers to meet the “daunting, if not impossible,” standard of being acceptable to members of all religions.[29] Requiring “exactitude” rather than good faith in inviting prayer-givers of different backgrounds would impose administrative burdens that would lead a small town “to forswear altogether the practice of having a prayer before meetings of the town council.”[30] Treating the town of Greece as an abstraction, rather than as a real entity with limited capacities, would deny it its own constitutional prerogatives. If “prayer before a legislative session is not inherently inconsistent with the First Amendment, then a unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a ‘best practices’ standard.”[31]

These are not the only examples of Alito writing separately to argue that the facts of the case were being lost in abstract categories.[32] In many cases, he reminds judges not to be captivated by abstraction but to take due account of individual circumstances. “A prudent judgment,” Anthony Kronman has written, describing Alexander Bickel’s philosophy, is “one that takes into account the complexity of its human and institutional setting, and a prudent person, in this sense, is one who sees complexities, who has an eye for what Bickel called the ‘unruliness of the human condition.’”[33] Justice Alito’s jurisprudence exemplifies this prudent approach.

II

Given his view of abstraction, it is not surprising that Justice Alito’s attitude toward history may differ somewhat from that exemplified by Justice Scalia. Scalia often focused on history as clarifying; history liquidates meaning and helps to develop fixed standards.[34] For Alito, history provides a source of legitimacy for practice, but history is also a cause for humility about our own understanding. The idea that judges are fallible and ought to be humble is uncontroversial, though perhaps not always observed.[35] But Alito’s opinions often highlight the role of history as a source not of clarity but of complexity and therefore as a reason to be humble.

The leading example of this theme is the opinion in American Legion v. American Humanist Association.[36] That case includes a direct statement about avoiding overly abstract reasoning. Alito wrote that the Lemon test “ambitiously attempted to find a grand unified theory of the Establishment Clause” but, “in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.”[37] History does not always provide clear answers. Alito explained that the Lemon test presents “particularly daunting problems” when it comes to old monuments.[38] It is not simply that finding a singular purpose may be difficult given the lack of documentation.[39] Rather, there might not be a single purpose: “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.”[40] And “just as the purpose for maintaining a monument, symbol, or practice may evolve, the message conveyed may change over time.”[41] For this reason, a court would be anachronistically imposing its own view of a monument such as the Bladensburg Cross if it assumed it was nothing more than a religious symbol:

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.[42]

Because “it is all but impossible” to determine the various meanings and purposes associated with a monument over time, we are left mainly with the fact of its existence.[43] Given that “retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones” the purpose of which we would perceive more clearly, “[t]he passage of time gives rise to a strong presumption of constitutionality.”[44]

History provides a reliable guide when it is possible to identify not a historical meaning but a historical “practice” such as the maintenance of a monument or the “tradition long followed in Congress and the state legislatures” regarding official prayer that made the difference in Town of Greece.[45] In the context of Town of Greece, it would have been difficult to define the exact contours of the Founders’ understanding of the Establishment Clause. But whatever the Establishment Clause prohibits, “[i]t is virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that [legislative prayer] was inconsistent with the Establishment Clause.”[46] A grand theory of the Establishment Clause might have been useful, if a sound one were available. But in the absence of such a theory, historical practice provided a knowable answer to the question before the Court.

It would also have been useful to know the significance of the Bladensburg Cross to those who erected it and to those who maintained it or saw it over the years. But a humble judge recognizes that “[w]e can never know for certain what was in the minds of those responsible for the memorial.”[47] Instead of attempting to read their minds, we can identify what we have in the present: a longstanding practice that has not previously been thought to depart from our constitutional traditions. For that reason, longstanding monuments have a “strong presumption of constitutionality.”[48]

More recently, in Dobbs v. Jackson Women’s Health Organization,[49] Alito examined historical practice to evaluate whether the Fourteenth Amendment guarantees a right to abortion. Answering that question did not require a comprehensive definition of the term “liberty” or a determination of whether the relevant provision is the Due Process Clause or the Privileges or Immunities Clause.[50] Instead, Alito recounted the historical practice from the thirteenth until the nineteenth century, when “[i]n this country . . . the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.”[51] In other words, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”[52] As in Town of Greece and American Legion, Alito identified a longstanding practice that had not, until 1973, been thought to violate the Constitution.

This general approach—a presumption in favor of practice without resort to theory—resembles Burke’s approach to understanding evolving institutions. When Burke defended the 500-year-old House of Commons against reformers, he identified “a presumption in favor of any settled scheme of government against any untried project,” provided that “a nation has long existed and flourished under it.”[53] No a priori theory of English government was needed because “[a] prescriptive government, such as ours, never was the work of any legislator, never was made upon any foregone theory.”[54] To “take the theories, which learned and speculative men have made from th[e] government, and then, supposing it made on these theories, . . . to accuse the government as not corresponding with them” was, to Burke, “preposterous.”[55] According to Burke, “one of the ways of discovering that it is a false theory is by comparing it with practice.”[56] That idea echoes in Alito’s observation in Town of Greece that, “if there is any inconsistency between any of [the courts of appeals’ Establishment Clause] tests and the historic practice of legislative prayer, the inconsistency calls into question the validity of the test, not the historic practice.”[57]

Some Alito opinions do examine the historical record in a conventional way—always cautiously and with an eye toward what history does not say as much as to what it does. One might consider his separate opinion in Evenwel v. Abbott, the case in which the Court upheld Texas’s use of total population numbers—as opposed to voter population numbers—in drawing state senate districts.[58] The majority analyzed the Great Compromise and the Fourteenth Amendment, and it gleaned from the history a “principle of representational equality.”[59] Alito disagreed with the Court’s “suggest[ion] that the use of total population is supported by the Constitution’s formula for allocating seats in the House of Representatives among the States.”[60] He provided a lengthy discussion of how in 1787 and 1868 “the dominant consideration was the distribution of political power among the States” rather than “any abstract theory about the nature of representation.”[61] Alito considered Hamilton’s statements at the convention, Thaddeus Stevens’s proposal of apportionment by voter population, James Blaine’s opposition to that proposal, and the views of Roscoe Conkling, Hamilton Ward, and Jacob Howard.[62] He did not reach a conclusion, however, about what the Framers were thinking when drafting Article I or the Fourteenth Amendment. Rather, “the history of Article I, § 2, of the original Constitution and § 2 of the Fourteenth Amendment” made clear only that “the apportionment of seats in the House of Representatives was based in substantial part on the distribution of political power and not merely on some theory regarding the proper nature of representation.”[63] Accordingly, “[i]t is impossible to draw any clear constitutional command from this complex history.”[64]

This sort of warning is characteristic of Alito’s opinions. Because the history of successive prosecutions under the laws of different sovereigns was “a muddle,” “spotty,” “equivocal,” and “dubious due to confused and inadequate reporting,” it was not appropriate to overturn precedent in Gamble v. United States—a case about the original meaning of the Double Jeopardy Clause.[65] Alito’s dissent in Atlantic Sounding Co. v. Townsend[66] is similar. In that case, the history of punitive damages prior to the Jones Act—as evidenced through case law—was “insufficient in . . . clarity” to depart, as the majority did, from precedent in the name of first principles.[67] And in Ohio v. Clark,[68] the absence of evidence that the Confrontation Clause was understood to bar the introduction of a child’s statement to his preschool teacher led Alito to decline to call the introduction of such a statement a Sixth Amendment violation.[69]

Avoiding easy generalizations and acknowledging history’s complexity do not undermine an originalist approach to interpretation. Scalia also recognized “that historical research is always difficult and sometimes inconclusive.”[70] Commentators acknowledge that “[o]riginalism doesn’t provide determinate answers to every question.”[71] Under an “inclusive” conception of originalism, “judges can look to precedent, policy, or practice, but only to the extent that the original meaning incorporates or permits them,” a position that accepts that not all cases are resolved solely by reference to the original public meaning of a text.[72] The scholarly recognition of the distinction between interpretation and construction follows from the fact that there is a point at which the semantic meaning runs out.[73]

These considerations get at what Alito meant when he called himself a “practical originalist.”[74] “I start out with originalism,” he has explained, because he believes “the Constitution means something and that that meaning does not change.”[75] For example:

We can look at what was understood to be reasonable at the time of the adoption of the Fourth Amendment. But when you have to apply that to things like a GPS that nobody could have dreamed of then, I think all you have is the principle and you have to use your judgment to apply it.[76]

Alito’s approach to history humbly recognizes and rejects the limitations of singular purposes or principles of interpretation.

III

Skepticism of abstraction and epistemic humility converge in Justice Alito’s approach to judicial precedent. Stare decisis, according to Alito, “is a doctrine that respects the judgment—the wisdom—of the past and that reflects a certain degree of humility about our ability to make sound decisions based on reason alone.”[77] At his confirmation hearing, he described stare decisis as “reflect[ing] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.”[78] Since then, Alito’s application of that doctrine has been described as “robust,”[79] and he has advocated its evenhanded implementation.[80]

The limits of “reason alone” inform both how Alito applies precedent and how he decides when a prior precedent ought to be overruled. In Hein v. Freedom from Religion Foundation, Alito noted that “[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic.”[81] In that case, the Court had to decide whether there was taxpayer standing to challenge discretionary Executive Branch expenditures under the Establishment Clause. In Flast v. Cohen,[82] the Court had held that taxpayers had standing to challenge a legislative appropriation to fund parochial schools. Justice Scalia thought that Flast articulated a broad principle applicable to “all challenges to government expenditures in violation of constitutional provisions that specifically limit the taxing and spending power.”[83] Thus, according to Scalia, “[e]ither Flast was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety.”[84] Alito, however, described how the doctrine had evolved in a different direction since Flast, with that case having “largely been confined to its facts.”[85] To “extend” Flast to the circumstances of Hein would push against the many precedents Alito identified that had refused “to lower the taxpayer standing bar” outside Flast’s narrow context.[86] In declining to extend Flast to the different context of discretionary Executive Branch expenditures, Alito “le[ft] Flast as we found it.”[87] Scalia called this position a “pose of minimalism.”[88] In Alito’s view it was a position of deference to the evolution of the case law in a greater number of cases and a recognition that the Constitution “limits our role to resolving the ‘Cases’ and ‘Controversies’ before us”[89]—a limitation that applied equally to the Flast Court.

In Hein and other cases,[90] Alito demonstrates a conception of stare decisis that is faithful not simply to precedential power but to precedential scope. A key “presupposition” of our law is that “[t]he court can decide only the particular dispute which is before it” and “when it speaks to any other question at all, it says mere words, which no man needs to follow.”[91] Alito’s opinions counsel caution not only in resorting to abstractions but also in too broadly reading a precedent as standing for a broader principle than was decided in the case.

The same prudential judgment informs when a prior decision should be overruled. When Alito has determined that a prior decision should be overturned, he has done so because that decision misread earlier precedent and failed to account for the particulars of the case. In Janus v. AFSCME, Council 31,[92] his majority opinion overruled Abood v. Detroit Board of Education[93] because in Abood the Court had not appreciated the circumstances before it. Alito criticized Abood for “fail[ing] to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees” and for “not sufficiently tak[ing] into account the difference between the effects of agency fees in public- and private-sector collective bargaining.”[94] Even “Abood’s proponents ha[d] abandoned its reasoning,” and cases on compelled speech since then had applied “exacting scrutiny” at least.[95] In other words, Abood was “an outlier among our First Amendment cases.”[96]

Similarly, in Fulton v. City of Philadelphia,[97] Alito wrote separately to argue that the Court should have overruled Employment Division v. Smith.[98] Smith, according to Alito, was “a methodological outlier” because it “ignored the ‘normal and ordinary’ meaning of the constitutional text” and “made no real effort to explore the understanding of the free-exercise right at the time of the First Amendment’s adoption.”[99] Moreover, Smith all but ignored the many earlier precedents at odds with its announced rule. In doing away with the existing Free Exercise rule of Sherbert v. Verner,[100] Smith had “pigeon-holed” that precedent and suggested that other cases had never applied Sherbert anyway.[101] “Smith’s rough treatment of prior decisions diminished its own status as a precedent,”[102] according to Alito, and given its inconsistency with trends in the case law, Smith—like Abood—was an “anomaly.”[103]

Alito’s decision in Dobbs to overrule Roe v. Wade[104] and Planned Parenthood of Southeastern Pennsylvania v. Casey[105] follows the same principles. Just as the Abood Court did not appreciate the relevant facts, Alito explained that the Roe Court “said almost nothing” about “the most important historical fact—how the States regulated abortion when the Fourteenth Amendment was adopted.”[106] Just as Smith, in Alito’s view, misapplied earlier precedents, Alito explained that Roe relied on decisions concerning “the right to shield information from disclosure,” which it “conflated” with “the right to make and implement important personal decisions without governmental interference.”[107] “None of these decisions involved what is distinctive about abortion: its effect on what Roe termed ‘potential life.’”[108] Within the larger corpus juris, Alito explained, Roe was an outlier.[109] And Casey had created an anomaly of its own: “an exceptional version of stare decisis that . . . this Court had never before applied and has never invoked since.”[110]

Alito’s willingness to reconsider cases such as Abood, Smith, and Roe follows from the same sort of institutional humility he displays in his other opinions. That humility is in deference to the larger body of case law that has evolved around earlier decisions. In Franchise Tax Board v. Hyatt,[111] the petitioners sought to overrule the Court’s prior decision in Nevada v. Hall.[112] The petitioners succeeded, and Alito joined the majority opinion. At oral argument, in response to the respondent’s contention that stare decisis favored upholding Hall even if Hall was incorrect, Alito asked:

In other words, reconsidering a decision is an admission by the Court that it made a mistake, but the Court must be willing to make that admission.[114] Some observers suggest that the Court “overturning its own precedents inherently undermines . . . respect for judicial authority.”[115] That view tends to treat the Court itself as an abstract entity—to be defended as always authoritative—rather than a real, human institution.[116] Alito’s approach, again, eschews abstraction for experience.

* * *

Burke himself had some admiration for lawyers. Law, in his opinion, was “one of the first and noblest of human sciences; a science which does more to quicken and invigorate the understanding, than all the other kinds of learning put together.”[117] Burke described “the science of jurisprudence” as “the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns.”[118] But legal reasoning has its limits, and as a result Burke thought the role of the legal profession should similarly be limited. It was not advisable, in Burke’s view, for the legislature to consist mainly of lawyers. “Lawyers . . . have their strict rule to go by,” he wrote, but “legislators ought to do what lawyers cannot; for they have no other rules to bind them but the great principles of reason and equity, and the general sense of mankind.”[119]

Legal reasoning is narrow and constrained by rules—and for those reasons it cannot fully exercise prudent judgment. Burke once illustrated the point by identifying “the difference between a legislative and a juridical act.”[120] As he put it: “A legislative act has no reference to any rule but these two, original justice, and discretionary application. Therefore it can give rights; rights where no rights existed before; and it can take away rights where they were before established.”[121] By contrast, “a judge, a person exercising a judicial capacity, is neither to apply to original justice, nor to a discretionary application of it. He goes to justice and discretion only at second hand, and through the medium of some superiors. He is to work neither upon his opinion of the one nor of the other; but upon a fixed rule, of which he has not the making, but singly and solely the application to the case.”[122] A “Burkean” judge, then, would recognize the important but limited role of legal reasoning and the judicial function. He would say “Let judges be judges.”[123] That has been Justice Alito’s message, too.

^* Circuit Judge, U.S. Court of Appeals for the Second Circuit. The author gratefully acknowledges the assistance of Ugonna Eze, William Foster, Joshua Ha, and Eli Nachmany in preparing this essay.

[2] Transcript of Oral Argument at 16, Schwarzenegger v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011) (No. 08-1448).

[3] Id.

[4] Id. at 17.

[5] Richard L. Hasen, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption 40–41 (2018) (“Scalia has been one of the most important voices espousing the theory of ‘originalism’ for interpreting the Constitution, and Alito’s snarky remark was a slam on this method.”); Erwin Chemerinsky, We the People: A Progressive Reading of the Constitution for the Twenty-First Century 27 (2018) (“Finally, Justice Alito interjected and said, ‘Well, I think what Justice Scalia wants to know is what James Madison thought about video games.’ Putting it that way shows the absurdity of trying to answer today’s constitutional questions by looking at the world of 1787 when the Constitution was drafted or 1791 when the First Amendment was ratified or 1868 when the Fourteenth Amendment was approved.”); James D. Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court 200 (2016) (“During oral argument in the video games case, where the issue was whether violent video games were protected speech under the First Amendment, Alito appeared to poke fun at Scalia’s originalism.”).

[6] Ent. Merchs., 564 U.S. at 798.

[7] Transcript, supra note 2, at 37–38.

[8] Ent. Merchs., 564 U.S. at 816 (Alito, J., concurring in the judgment).

[9] See infra Part I.

[10] See Adam J. White, The Burkean Justice, Wkly. Standard (July 18, 2011), https://www.washingtonexaminer.com/weekly-standard/the-burkean-justice [https://perma.cc/XY9Y-EHTX]; see also Stephen M. Bainbridge, Burkean Justice, ProfessorBainbridge.com (July 11, 2011, 9:14 AM), https://www.professorbainbridge.com/professorbainbridgecom/2011/07/burkean-justice.html [https://perma.cc/8CHX-793Y];  Michael Ramsey, Justice Alito on Burkean Constitutionalism, Originalism Blog (Apr. 28, 2012), https://originalismblog.typepad.com/the-originalism-blog/2012/04/justice-alito-on-burkean-constitutionalismmichael-ramsey.html [https://perma.cc/8XRD-3ZKW]; Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L. Rev. 507 (2019). In fact, the same suggestion was made at the time of Alito’s confirmation, but it was not yet a popular theme. See Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 1179 (2006) [hereinafter Confirmation Hearing] (Statement of Anthony Kronman) (“In my view, the tradition of conservatism to which Judge Alito belongs is the tradition championed by my constitutional law professor at Yale, Alexander Bickel. Bickel made prudence the judge’s central virtue, and spoke of the importance of deference in deciding cases, of what he called the ‘passive virtues,’ especially in the work of the Supreme Court. Bickel himself claimed descent from Edmund Burke, the great eighteenth century writer and statesman who warned against the dangers of abstraction and the loss of a sense of responsible connection to the past.”).

[11] Samuel A. Alito, Jr., The Wriston Lecture: Let Judges Be Judges (Oct. 13, 2010).

[12] See, e.g., 2 Edmund Burke, An Appeal from the New to the Old Whigs, in Works of Edmund Burke 3, 10 (1857) (1791) (“Nothing universal can be rationally affirmed on any moral or any political subject. Pure metaphysical abstraction does not belong to these matters. The lines of morality are not like ideal lines of mathematics. They are broad and deep as well as long. They admit of exceptions; they demand modifications. These exceptions and modifications are not made by the process of logic, but by the rules of prudence.”).

[13] See, e.g., 2 Edmund Burke, Reflections on the Revolution in France, in Select Works of Edmund Burke 85, 93 (Liberty Fund 1999) (1790) (“Circumstances . . . give in reality to every political principle its distinguishing colour, and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind.”).

[14] To Alexander Bickel, the main institutional advantage of the judicial branch was its ability to focus on the particulars of a case rather than abstract principles. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 26 (1962) (“Another advantage that courts have is that questions of principle never carry the same aspect for them as they did for the legislature or the executive. Statutes, after all, deal typically with abstract or dimly foreseen problems. The courts are concerned with the flesh and blood of an actual case. This tends to modify, perhaps to lengthen, everyone’s view. It also provides an extremely salutary proving ground for all abstractions; it is conducive, in a phrase of Holmes, to thinking things, not words, and thus to the evolution of principle by a process that tests as it creates.”); id. at 115 (“[T]here are sound reasons, grounded not only in theory but in the judicial experience of centuries, here and elsewhere, for believing that the hard, confining, and yet enlarging context of a real controversy leads to sounder and more enduring judgments.”). He also emphasized that the judicial power authorized judges only to consider these particulars. See Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 42 (1961) (“It follows [from the judicial power] that courts may make no pronouncements in the large and in the abstract, by way of opinions advising the other departments upon request; that they may give no opinions, even in a concrete case, which are advisory because they are not finally decisive, the power of ultimate disposition of the case having been reserved elsewhere; and that they may not decide non-cases, which are not adversary situations and in which nothing of immediate consequence to the parties turns on the results.”).

[15] Press Release, Columbia Law School, U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court (Apr. 24, 2012), https://www.law.columbia.edu/news/archive/us-supreme-court-justice-samuel-alito-says-pragmatism-stability-should-guide-court [https://perma.cc/LGH2-EJYR ] (quoting Justice Alito).

[16] McCoy v. Louisiana, 138 S. Ct. 1500, 1512 (2018) (Alito, J., dissenting); see also Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2242 (2021) (Alito, J., dissenting) (“If we expect the lower courts to respect our decisions, we should not twist their opinions to make our job easier.”).

[17] Schwarzenegger v. Ent. Merchs. Ass’n, 564 U.S. 786, 806 (2011) (Alito, J., concurring in the judgment).

[18] Id. at 820 (citation omitted); see also Packingham v. North Carolina, 582 U.S. 98, 118 (2017) (Alito, J., concurring in the judgment) (“[C]ontrary to the Court’s suggestion, there are important differences between cyberspace and the physical world. . . . [W]e should be cautious in applying our free speech precedents to the internet.”).

[19] 562 U.S. 443 (2011).

[20] Id. at 454.

[21] Id. at 471 (Alito, J., dissenting).

[22] The Westboro Baptist Church had published an “epic” account of its protest called “The Burden of Marine Lance Cpl. Matthew A. Snyder,” which condemned Snyder for being Catholic and serving in the military, among other things. The Court did not consider it, even though it had been submitted to the jury at trial. Alito responded: “The Court refuses to consider the epic because it was not discussed in Snyder’s petition for certiorari. The epic, however, is not a distinct claim but a piece of evidence that the jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress. The Court’s strange insistence that the epic ‘is not properly before us’ means that the Court has not actually made ‘an independent examination of the whole record.’ And the Court’s refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro’s protest activities at other times and locations.” Id. at 470 n.15 (citations omitted).

[23] 572 U.S. 565 (2014).

[24] Id. at 615–16 (Kagan, J., dissenting).

[25] Id. at 632, 637–38.

[26] Id. at 592 (Alito, J., concurring).

[27] Id.

[28] Id. at 597. In a similar way, Alito wrote separately in New York State Rifle and Pistol Association v. Bruen to note that “[m]uch of the dissent seems designed to obscure the specific question that the Court has decided.” 142 S. Ct. 2111, 2157 (2022) (Alito, J., concurring).

[29] Town of Greece, 572 U.S. at 595 (Alito, J., concurring).

[30] Id. at 597.

[31] Id. at 597–98.

[32] See, e.g., Rehaif v. United States, 139 S. Ct. 2191, 2201 (2019) (Alito, J., dissenting) (“The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this petitioner’s claim.”); Collins v. Virginia, 138 S. Ct. 1663, 1681 (2018) (Alito, J., dissenting) (suggesting that the majority’s “legal rule . . . did not comport with the reality of everyday life”); United States v. Stevens, 559 U.S. 460, 485 (2010) (Alito, J., dissenting) (“In determining whether a statute’s overbreadth is substantial, we consider a statute’s application to real-world conduct, not fanciful hypotheticals.”); Ricci v. DeStefano, 557 U.S. 557, 596 (2009) (Alito, J., concurring) (noting that “the dissent . . . provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam,” and that “when all of the evidence in the record is taken into account, it is clear that” the petitioners in the case were entitled to summary judgment on their Title VII claim).

[33] Anthony T. Kronman, Alexander Bickel’s Philosophy of Prudence, 94 Yale L.J. 1567, 1569 (1985) (quoting Alexander Bickel, Constitutionalism and the Political Process, in The Morality of Consent 3, 11 (1975)).

[34] Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 45 (1997) (“[T]he originalist at least knows what he is looking for: the original meaning of the text. Often—indeed, I dare say usually—that is easy to discern and simple to apply.”) (comparing originalism to living constitutionalism).

[35] As Justice Jackson famously wrote, “[w]e are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

[36] 139 S. Ct. 2067 (2019).

[37] Id. at 2087.

[38] Id. at 2081.

[39] Id. at 2082 (“[T]hese cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identifying their original purpose or purposes may be especially difficult.”); id. at 2085 (“The passage of time means that testimony from those actually involved in the decisionmaking process is generally unavailable, and attempting to uncover their motivations invites rampant speculation.”).

[40] Id. at 2082; see also id. at 2085 (“And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns the Commission has pressed here.”); id. at 2083 (“The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.”).

[41] Id. at 2084 (internal quotation marks and alterations omitted).

[42] Id. at 2090.

[43] Id. at 2085.

[44] Id.

[45] Town of Greece v. Galloway, 572 U.S. 565, 577 (2014).

[46] Id. at 602–03 (Alito, J., concurring).

[47] American Legion, 139 S. Ct. at 2090.

[48] Id. at 2085.

[49] 142 S. Ct. 2228 (2022).

[50] See id. at 2248 n.22.

[51] Id. at 2252.

[52] Id. at 2253–54.

[53] 3 Edmund Burke, Reform of the Representation of the Commons in Parliament, in Speeches of the Right Honourable Edmund Burke 43, 46 (1816) (1782).

[54] Id. at 48; see also 1 William Blackstone, Commentaries on the Laws of England 70 (1765) (“[P]recedents and rules must be followed, unless fatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such deference to former times as not to suppose they acted wholly without consideration.”).

[55] 3 Burke, supra note 53, at 48. Burke typified what Bickel called the “Whig tradition.” Bickel, supra note 33, at 11–12. According to Bickel, the “Whig model . . . begins not with theoretical rights but with a real society, whose origins in the historical mists it acknowledges to be mysterious.” Id. at 4.

[56] 3 Burke, supra note 53, at 48; see also Richard A. Epstein, Our Implied Constitution, 53 Willamette L. Rev. 295, 332 (2017) (“Custom is not perfect, but in government arrangements, as with standard industry practice, it tends to survive only if it has some clear efficiency properties.”).

[57] 572 U.S. at 603 (Alito, J., concurring). Richard Epstein has suggested that a longstanding practice that works well might trump original meaning. See, e.g., Richard A. Epstein, An Unapologetic Defense of the Classical Liberal Constitution: A Reply to Professor Sherry, 128 Harv. L. Rev. F. 145, 157 (2015) (“[E]ven strict originalists should not be so foolish as to seek to undo those institutions that have allowed the nation to flourish.”); Richard A. Epstein, A Speech on the Structural Constitution and the Stimulus Program, 4 Charleston L. Rev. 395, 416 (2010). Alito, on the other hand, refers to practice to establish what was understood to be encompassed within the original meaning of the Constitution. His argument is that an Establishment Clause test cannot have accurately captured the original meaning if it prohibits a practice in which the Framers engaged.

[58] 578 U.S. 54, 63 (2016).

[59] Id. at 69.

[60] Id. at 94 (Alito, J., concurring in the judgment).

[61] Id. at 96.

[62] Id. at 97–103.

[63] Id. at 103 (emphasis added).

[64] Id.

[65] 139 S. Ct. 1960, 1969, 1973 (2019) (internal quotation marks omitted).

[66] 557 U.S. 404 (2009).

[67] Id. at 431 (Alito, J., dissenting).

[68] 576 U.S. 237 (2015).

[69] See id. at 248–49 (“It is . . . highly doubtful that statements like L. P.’s ever would have been understood to raise Confrontation Clause concerns. Neither Crawford nor any of the cases that it has produced has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding.”); see also Williams v. Illinois, 567 U.S. 50, 86 (2012) (“In short, the use at trial of a DNA report prepared by a modern, accredited laboratory bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.”) (internal quotation marks omitted).

[70] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 864 (1989).

[71] Stephen E. Sachs, The Law and Morals of Interpretation, 13 Duke J. Const. L. & Pub. Pol’y 103, 106 (2018).

[72] William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2355 (2015).

[73] See Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65 (2011); Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95 (2010).

[74] Matthew Walther, Sam Alito: A Civil Man, American Spectator (Apr. 21, 2014), https://spectator.org/sam-alito-a-civil-man/ [https://perma.cc/7X9X-U6FY].

[75] Id.

[76] Id. In United States v. Jones, Justice Scalia applied an historically grounded property-rights framework to conclude that GPS tracking of automobiles was a search under the Fourth Amendment. 565 U.S. 400, 404–05 (2012). Concurring only in the judgment, Alito wrote that the “case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique” but “the Court has chosen to decide this case based on 18th-century tort law.” Id. at 418 (Alito, J., concurring in the judgment). He observed that “it is almost impossible to think of late 18th-century situations that are analogous to what took place in this case,” straining to imagine “a case in which a constable secreted himself somewhere in a coach . . . in order to monitor the movements of the coach’s owner.” Id. at 420. Scalia thought that example was plausible, noting that “[t]here is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled.” Id. at 406 n.3 (majority opinion). Alito responded that “this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.” Id. at 420 n.3 (Alito, J., concurring in the judgment). In other cases, Justice Alito has similarly cautioned against assuming too readily that historical practice tells us what the framers and ratifiers thought about constitutional principles applied to new problems. In Comptroller of the Treasury v. Wynne, for example, Justice Thomas argued that “[t]here is no indication that . . . early state income tax schemes provided credits for income taxes paid elsewhere” and therefore “[i]t seems highly implausible that those who ratified the Commerce Clause understood it to conflict with the income tax laws of their States and nonetheless adopted it without a word of concern.” 575 U.S. 542, 579–80 (2015). (Thomas, J., dissenting). Alito responded that “the number of individuals who earned income out of State in 1787 was surely very small,” so “[e]ven if some persons were taxed twice, it is unlikely that this was a matter of such common knowledge that it must have been known by the delegates to the state ratifying conventions who voted to adopt the Constitution.” Id. at 570–71 (majority opinion). In other words, the practice of not providing credits for income tax paid elsewhere had little to say about the original understanding of the Commerce Clause.

[77] Samuel A. Alito, Jr., Remarks of Justice Alito: The Catholic University of America, Columbus School of Law Commencement, 58 Cath. U. L. Rev. 1, 5 (2008).

[78] Confirmation Hearing, supra note 10, at 318–19.

[79] Calabresi & Shaw, supra note 10, at 512.

[80] See, e.g., Arizona v. Gant, 556 U.S. 332, 355–56 (2009) (Alito, J., dissenting); Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring in the judgment); see also William Baude, Precedent and Discretion, 2019 Sup. Ct. Rev. 313, 324–29 (2020).

[81] 551 U.S. 587, 615 (2007).

[82] 392 U.S. 83 (1968).

[83] Hein, 551 U.S. at 628 (Scalia, J., concurring in the judgment). Justice Scalia thought Flast was wrongly decided and should be overruled, thus his concurrence in the judgment.

[84] Id. at 633.

[85] Id. at 609 (plurality opinion).

[86] Id. at 609–10, 615.

[87] Id. at 615.

[88] Id. at 630 (Scalia, J., concurring in the judgment).

[89] Id. at 615 (plurality opinion).

[90] See, e.g., Hurst v. Florida, 577 U.S. 92, 104 (2016) (Alito, J., dissenting) (“Although the Court suggests that today’s holding follows ineluctably from Ring, the Arizona sentencing scheme at issue in that case was much different from the Florida procedure now before us.”).

[91] Karl N. Llewllyn, The Bramble Bush: On Our Law and Its Study 42 (1951).

[92] 138 S. Ct. 2448 (2018).

[93] 431 U.S. 209 (1977).

[94] Janus, 138 S. Ct. at 2479–80.

[95] Id. at 2483, 2486.

[96] Id. at 2482.

[97] 141 S. Ct. 1868 (2021).

[98] 494 U.S. 872 (1990).

[99] Fulton, 141 S. Ct. at 1912 (Alito, J., concurring in the judgment) (quoting District of Columbia v. Heller, 554 U.S. 570, 576 (2008)).

[100] 374 U.S. 398 (1963).

[101] Fulton, 141 S. Ct. at 1914–15 (Alito, J., concurring in the judgment).

[102] Id. at 1915.

[103] Id. at 1915–16. Smith’s refusal to provide religious exemptions to neutral and generally applicable laws is difficult to reconcile with the “ministerial exception” in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). Alito also noted Smith’s uneasy fit with Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2021), in which the Court said that “it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion,” id. at 1727. Smith is also in tension with the Court’s cases which permit exemptions on the basis of other First Amendment rights. See Fulton, 141 S. Ct. at 1916 (discussing Boy Scouts of America v. Dale, 530 U.S. 640 (2000), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)).

[104] 410 U.S. 113 (1973).

[105] 505 U.S. 833 (1992).

[106] Dobbs, 142 S. Ct. at 2267.

[107] Id. at 2237.

[108] Id. (quoting Roe, 410 U.S. at 163).

[109] See also id. at 2267 (noting Roe’s “failure even to note the overwhelming consensus of state laws in effect in 1868,” that “what it said about the common law was simply wrong,” and its contradiction of “Bracton, Coke, Hale, Blackstone, and a wealth of other authority”).

[110] Id. at 2266.

[111] 139 S. Ct. 1485 (2019).

[112] 440 U.S. 410 (1979).

[113] Transcript of Oral Argument at 52–53, Franchise Tax Board v. Hyatt, 139 S. Ct. 1485 (2019) (No. 17-1299).

[114] See Dobbs, 142 S. Ct. at 2280 (“Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket.”).

[115] Transcript, supra note 113, at 50–51 (respondents’ counsel).

[116] Accordingly, Alito has been willing to criticize the Court as a human institution. In Gundy v. United States, 139 S. Ct. 2116 (2019), he wrote of the nondelegation doctrine: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” Id. at 2131 (Alito, J., concurring in the judgment). In Chambers v. United States, 555 U.S. 122 (2009), he wrote separately “to emphasize that only Congress can rescue the federal courts from the mire into which ACCA’s draftsmanship and Taylor’s ‘categorical approach’ have pushed us.” Id. at 132 (Alito, J., concurring in the judgment); see also Ramos v. Louisiana, 140 S. Ct. 1390, 1427–28 (2020) (Alito, J., dissenting) (“Everybody thought Apodaca[ v. Oregon] was a precedent. But, according to three of the Justices in the majority, everyone was fooled. Apodaca, the precedent, was a mirage. Can this be true? No, it cannot.”); Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Alito, J., dissenting) (“I can only conclude that the Court, for whatever reason, is simply ignoring Chevron.”).

[117] 1 Edmund Burke, Speech on American Taxation, in Works of Edmund Burke 191, 203 (1857) (1774).

[118] 2 Burke, supra note 13, at 191.

[119] Edmund Burke, A Letter to John Farr and John Harris on the Affairs of America, in Burke’s Speeches and Letters on American Affairs 189, 195 (1931) (1777); see also Leo Strauss, Liberal Education and Responsibility, in Liberalism Ancient and Modern 9, 16–17 (1968).

[120] 1 Edmund Burke, Sir George Savile’s Motion for a Bill to Secure the Rights of Electors, in Speeches of the Right Honourable Edmund Burke 73, 75 (1816) (1771).

[121] Id.

[122] Id. at 76.

[123] Alito, supra note 11.

Judge Alito’s First Amendment Vigilance on the Third Circuit – Hon. Stephanos Bibas

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Judge Alito’s First Amendment Vigilance on the Third Circuit

Hon. Stephanos Bibas*

Seventeen years ago, Justice Alito ascended to the Supreme Court. His tenure there has just surpassed the fifteen-plus years that he served on the court where I sit, the U.S. Court of Appeals for the Third Circuit. When I interviewed them for this chapter, my colleagues who served with him all remembered him fondly as “well respected and well liked.” He got along with everyone, embodying the Third Circuit’s strong tradition of collegiality. And he “inspire[d] intense loyalty” in his friends and law clerks.

Judge Alito, they recall, was “very smart.” He was always “extraordinarily prepared” for oral argument, where his questions “zeroed in on the key issue.” He “wrote beautifully,” and his opinions got to the point. He was also “a lawyer’s lawyer,” following the law wherever it took him, even when he found the result distasteful. Despite his many accomplishments, he was humble and quiet. Yet he had a hilarious, “very dry sense of humor,” befitting a judge born on April Fools’ Day.

Judge Alito was not only a terrific guy, but also a brilliant jurist. He made valuable contributions to the Third Circuit’s case law, staking out robust defenses of religious liberty, free speech, and the role of religion in the public square. These precedents remain landmarks and presage many positions he has continued to champion at the Supreme Court. Collectively, they reflect now-Justice Alito’s principled, consistent defense of the First Amendment.

I.    Free Exercise

Three decades ago, the Supreme Court greatly narrowed its reading of the Free Exercise Clause. Under Smith, “neutral law[s] of general applicability” do not implicate free exercise, even if they burden religious activity.[1] On the other hand, laws that target religious practice still trigger strict scrutiny.[2]

Smith and its progeny, though, did not fully define what made a law neutral or generally applicable. It was hard to tell what was constitutional: many laws do not openly target religious activity, yet they exempt some secular actions without likewise exempting their religious counterparts. Religious exemptions might be required sometimes, the Court suggested, but it did not explain when.[3]

In his time on the Third Circuit, Judge Alito did his best to fill this void. Twice, he carefully explained why policies could not exempt secular activities without doing the same for comparable religious ones. In so doing, he protected a diverse array of religious practices. His decisions two decades ago have foretold the high Court’s direction since then.

A.    Clean-shaven cops and Muslim beards

Police departments make their officers wear uniforms to create a disciplined image, make officers identifiable, and forge esprit de corps. For the same reasons, Newark’s police department ordered its officers to shave off their beards. The Department granted exemptions from the policy for undercover officers and medical reasons, but not religious ones.[4]

Two Sunni Muslim officers objected. They believed that shaving off or refusing to grow a beard was a serious sin, equivalent to eating pork. As the Department prepared to discipline them, they sued to enjoin the policy. The Department responded that disability law required a medical exemption, but the First Amendment did not require a religious one.

Judge Alito held the policy unconstitutional. He rejected the disability-law defense, noting that civil-rights law equally requires religious accommodations. In any event, the First Amendment bars treating religious claims worse than medical ones. The government seemed to have decided that “secular motivations are more important than religious motivations.”[5] And that apparent intent to discriminate triggered heightened scrutiny.

The policy could not survive that scrutiny. The relevant question, he reasoned, was whether religious exemptions would undermine the no-beard policy more than medical exemptions would.[6] Here, it wouldn’t. The Department justified its policy as needed to preserve uniformity and morale. But religious exemptions wouldn’t affect those goals any more than medical exemptions would.

Thus, Fraternal Order of Police established that granting nonreligious exemptions, but denying individual religious exemptions, could show discriminatory intent.[7] And it did so while protecting a minority religion.

B.     Wildlife permits, zoos, Indian tribes, and bear rituals

Five years later, Judge Alito expanded Fraternal Order of Police’s rule from individual to categorical exemptions. This one involved Dennis Blackhawk, a holy man of the Lakota Indian tribe. Blackhawk owned two black bears that he used in religious ceremonies. Pennsylvania law required anyone who owned wildlife to get a permit and pay a fee. But it allowed waiver of these requirements for zoos and circuses, as well as for “hardship or extraordinary circumstance,” so long as the waiver was “consistent with sound game or wildlife management activities.”[8]

Blackhawk sought a religious exemption from the fee. But Pennsylvania denied it, regardless of hardship, because it thought that keeping wild animals captive conflicted with sound wildlife management.

Judge Alito rejected Pennsylvania’s justification. The Commonwealth gave zoos and circuses broad, categorical exemptions. So its opposition to keeping wild animals was not “firm or uniform.”[9]

Next, the court extended Fraternal Order of Police to categorical exemptions. That case, Judge Alito noted, had held that “individualized, discretionary exemptions” undercut a law’s general applicability.[10] But the same is true of laws that broadly exempt secular actions that undermine the laws’ purposes without doing the same for comparable religious actions. By extending the doctrine to broad exemptions, Judge Alito deemphasized the role of suspected discriminatory intent. All that mattered was that the law was substantially underinclusive in pursuing its stated goals. Thus, Judge Alito applied strict scrutiny and invalidated the unequal exemption scheme.

The principles that Judge Alito announced in these two cases echo in his work on the Supreme Court. Two terms ago, Justice Alito criticized state COVID policies that restricted worship more than some secular activities. In one case, he reprimanded Nevada for capping worship services at fifty people while letting casinos operate at half capacity.[11] In another, he would have made California prove that “nothing short of” its restrictions on churches would “reduce the community spread of COVID-19” as much as the laxer restrictions on “essential” activities.[12] In short, states may not treat secular activities better than religious ones without compelling reasons. And in Fulton v. City of Philadelphia, he drew on Fraternal Order of Police to advocate overruling Smith, in part because courts have struggled to discern whether laws target religion and whether exemptions are uneven.[13]

Critics knock Justice Alito as narrowly protecting conservative Christians.[14] But as Fraternal Order of Police and Blackhawk illustrate, his free-exercise commitment protects people of all faiths, just as the Constitution demands.

II.  Establishment

Confusion about the First Amendment and religion extends to the Establishment Clause too. Broad religious accommodation often gets criticized as violating the Establishment Clause.[15] And courts remain unclear about how that provision interacts with the Free Exercise Clause.

Half a century ago, in Lemon v. Kurtzman, the Supreme Court read the Establishment Clause as requiring a law to satisfy a three-pronged test.[16] First, it “must have a secular legislative purpose.”[17] Second, its main effect must be neither to promote nor to retard religion.[18] And third, it must “not foster an excessive government entanglement with religion.”[19] But the Court often used other standards, leaving the whole field muddled.[20] Only recently has the Court at last buried the zombified test.[21]

On the Supreme Court, Justice Alito criticized the Lemon test as obsolete.[22] At worst, he said, it “puzzled” and “terrified” government officials into making the public square “a religion-free zone.”[23] But, as the Court now agrees, the Constitution does not require the government to erase religion from public life.[24]

Justice Alito’s justified skepticism began with his work on the Third Circuit. Twice, he carefully drew the Establishment Clause’s lines to leave people free to express their beliefs in the public square.

A.    Crèche, menorah, and Frosty the Snowman

The Supreme Court’s fact-intensive precedents on holiday displays have long puzzled judges and local officials in places like Jersey City. For years, Jersey City’s holiday display was comprised of only a menorah and a Christmas tree.[25] After a trial court enjoined that, the City added a crèche, sled, Santa Claus, Frosty the Snowman, and Kwanzaa symbols.[26]

In reviewing the revised display, the Third Circuit panel struggled to make sense of the Supreme Court’s holiday-display cases. In Lynch v. Donnelly, a majority of the Court had upheld a holiday display including a crèche under the Lemon test.[27] But Justice O’Connor, the deciding vote, had suggested that the right approach was to ask whether the display appeared to endorse religion.[28] Five years later, the full Court adopted her endorsement test in County of Allegheny v. ACLU, striking down a crèche-focused display but upholding one with a menorah and Christmas tree.[29]

In the Jersey City case, Judge Alito spent pages summarizing both cases and comparing their facts.[30] Ultimately, he thought the modified display more closely resembled those upheld by the Court. But his reasoning drew a strident dissent, which read Lynch and Allegheny differently.[31]

Frustrated with parsing the precedents’ factual minutiae, the dissent begged the Supreme Court to clarify its standard.[32] In response, Judge Alito’s opinion advanced a prescient suggestion: to decide how reasonable observers would view a practice, courts should consider the practice’s “history and ubiquity.”[33]

Now on the Supreme Court, Justice Alito has continued this focus on history. In several cases, he has set aside the Lemon test. Instead, in upholding legislative prayer, he has focused on the history of the practice.[34] He has done likewise with monuments.[35] And the Court has since joined him, replacing Lemon with an “analysis focused on original meaning and history.”[36] These opinions have given lower-court judges clearer guidance than he had while serving on the Third Circuit.

B.     Boy Scouts as well as Bible games

Judge Alito’s Lemon skepticism extended equally to after-school clubs, like the one in Stafford.[37] The Stafford School District sent home literature about lots of nonprofits, like the Parent-Teacher Association, Boy Scouts, Girl Scouts, Four-H Club, Lions Club, and Elks.[38] But when a Christian group wanted to publicize its Good News Club, offering after-school Bible education and games, the school said no.[39] It feared that distributing their flyers would violate the Establishment Clause or at least “create divisiveness.”[40]

Judge Alito rejected the Establishment Clause defense under any of three possible tests. First, the Lemon test was satisfied.[41] Giving religious groups equal access to public fora advances the secular purpose of informing families of the diverse community groups available; helps religious groups only incidentally, no more than secular ones; and does not entangle states with religion.[42]

Second, giving religious groups equal access would not reasonably be perceived as endorsing religion.[43] As the Supreme Court has repeatedly held, letting religious groups use school facilities to host a club or show a film does not, in context, endorse religion.[44] So too here. A “reasonable observer who is aware of the history and context of the community and forum” would know that Stafford was not endorsing the Club.[45]

Finally, Judge Alito reasoned, sending home the flyers would not coerce parents or their students to take part in religion.[46] So the Club’s activities passed all three tests. The Club thus deserved equal access to the school.

His evenhandedness toward religion contrasts with that of another circuit. A panel of the Second Circuit upheld a school policy that let civic groups, but not church services, meet in its buildings after hours.[47] It reasoned that keeping religious groups out was a reasonable way to avoid the risk of violating the Establishment Clause.[48] That overreading of the Establishment Clause, to allow if not require discrimination against religion, is precisely what then-Judge Alito consistently rejected. Indeed, the Supreme Court has continued the same evenhanded approach in recent cases like Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, Carson v. Makin, and Kennedy v. Bremerton School District, supported by Justice Alito.[49] His thoughtful jurisprudence has carried the day.

III.           Free Speech

Schools also loom large in free-speech disputes. And in the same vein, Judge Alito consistently opposed efforts to discriminate against religious, controversial, or unpopular speech.

Even in school, the First Amendment guards against viewpoint discrimination. If school officials let a range of speakers express their views, they may not shut down some viewpoints just to avoid uncomfortable disagreement. Students do not lose all freedom of speech “at the schoolhouse gate.”[50] As the Court held in Tinker, school officials must show “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[51] To justify restricting speech, they must show that the suppressed speech would “materially and substantially disrupt the work and discipline of the school.”[52]

Judge Alito zealously guarded speech from schools’ efforts to censor religious or unpopular content. In Child Evangelism, he rejected the school district’s argument that Good News’s flyers would amount to the school’s own speech. And the school district could not ban the Good News Club just because its speech was controversial. “To exclude a group simply because it is controversial or divisive is viewpoint discrimination,” Judge Alito held, relying on Tinker.[53] Religious speech is fully protected, he insisted, even if it might discomfit some hearers and even if its traditional views might clash with the school’s notion of “diversity and tolerance.”[54] In the process, he deftly punctured the school’s Orwellian use of “tolerance” to justify its intolerance of disfavored speech.

Two other times, Judge Alito stood up for students’ own speech. In each, he protected religious students’ right to speak their minds free of school officials’ censorship. Though Tinker lets school officials preserve a learning environment, he stressed, it does not let them scrub religious viewpoints for fear of giving offense.

A.    A kindergartner giving thanks for Jesus

The first case involved a class assignment. Zachary Hood’s kindergarten teacher asked him to make a Thanksgiving poster showing what he was thankful for.[55] He made a poster of Jesus.[56] For a couple of days, his poster hung in the hallway alongside those of his classmates.[57] But then school officials took it down, allegedly because its theme was religious.[58] Eventually, Zachary’s teacher put it back up, but in a less prominent spot.[59] Zachary and his mother sued.

A panel of the Third Circuit upheld the school’s actions as “reasonably related to legitimate pedagogical concerns.”[60] It thought the school could restrict religious views in the classroom to avoid any misimpression that the school was promoting religious views.[61] The full court then reheard the case en banc yet dodged the First Amendment question. But Judge Alito dissented.

In dissent, he rejected the panel’s suggestion that schools could discriminate against religious viewpoints. Instead, he insisted that as long as it falls within the assignment or discussion’s scope, “public school students have the right to express religious views in class discussion or in assigned work.”[62] Under Tinker, schools may still restrict disruptive speech. But discomfort or resentment of religion is not enough. “[V]iewpoint discrimination strikes at the heart of the freedom of expression.”[63] And discriminating against religious speech is discriminating against religious viewpoints. “Zachary was entitled to give what he thought was the best answer” to the Thanksgiving assignment.[64] “He was entitled to be free from pressure to give an answer thought by [his] educators to be suitabl[y]” secular.[65]

On the Supreme Court, Justice Alito still takes care to distinguish schools’ own speech from that of their students. He joined an opinion letting schools censor speech at a school activity that advocated drug use, but wrote separately to underscore that schools may not invoke their “educational mission” to justify censoring speech opposed to their own “political and social views.”[66] And he recently condemned a school’s effort to punish a student for venting anger at her cheerleading coach’s decisions. Schools, he wrote, cannot restrict their students’ off-campus expressions about “politics, religion, and social relations.”[67] Speech on such matters lies at the heart of the First Amendment’s protection,” so it “cannot be suppressed just because it expresses thoughts or sentiments that others find upsetting.”[68]

B.     Offensive comments and robust debate

Judge Alito’s other school-speech case involved a broad ban on harassing or offensive remarks, including “negative name calling” based on sexual orientation.[69] The Saxe children were religiously opposed to homosexuality and believed they should voice their opposition, but feared punishment under the policy.[70] So they sued to enjoin it.

Judge Alito first rejected the school’s argument that the First Amendment does not protect harassing or offensive language. True, he noted, harassing conduct is not speech. And a pattern of “severe, pervasive, and objectively offensive” harassment is tortious if it “effectively denie[s] [students] equal” educations.[71] But much speech that is just “deeply offensive” does not rise to that level.[72] And “anti-discrimination laws are [not] categorically immune from First Amendment challenge.”[73]

In any event, the school’s policy reached much further than anti-discrimination law does, to include disparaging another person’s values. But the First Amendment protects arguments over values. Quoting the flag-burning case, he explained that “a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose [even] when it … stirs people to anger.”[74]

Next, Judge Alito followed Tinker in limiting school-speech regulations to disruptive speech. As he recognized, some student speech disrupts education.[75] But the school’s policy reached much further than that to forbid giving offense based on personal characteristics. In the schoolhouse, as in society, the government may not ban speech just because someone takes offense to it.[76]

Judge Alito’s holding put him at odds with other jurists. Five years later, the Ninth Circuit suggested that anti-gay speech could be “verbal assaults” unprotected by the First Amendment.[77] In recent years, other courts have confronted the clash between free speech and gay rights.[78]

Today, Justice Alito continues to contribute to this debate on the Supreme Court. Dissenting in Obergefell v. Hodges, he worried that opponents of same-sex marriage who voice their beliefs will “risk being labeled as bigots and treated as such by governments, employers, and schools.”[79] A few years later, he joined in overturning Colorado’s fine on a baker who refused to bake a cake for a same-sex wedding.[80] Especially in cases like these, he argues, we must keep free speech “from becoming a second-tier constitutional right.”[81]

Justice Alito’s commitment to the First Amendment remains critical as the Court continues to work through the clash between free speech and antidiscrimination laws. Based on his record, Justice Alito will keep vigilantly protecting free speech against incursions by those who take offense. Yet as he recognizes, “there is only so much that the judiciary can do” here.[82] He understands that, as Learned Hand put it: “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it.”[83]

IV.           Conclusion

Judge Alito built a legacy of strong First Amendment precedent. On the Third Circuit, as at the Supreme Court, he championed robust free speech, religious freedom, and religious participation in the public square. He stood up not only for his own Christian faith, but also for small, powerless ones and unpopular points of view. As he has explained, “Sometimes you have to do things that are unpopular. Unpopular with your colleagues. Unpopular with the District Judge. . . . Unpopular with the community.”[84] That takes “courage,” but it is the “right thing” for a judge to do.[85]

His legacy on my court is admirable, one that I aspire to live up to.

* Judge, U.S. Court of Appeals for the Third Circuit; Senior Fellow, University of Pennsylvania Law School. Thanks to Robby George, Sherif Girgis, Rishabh Bhandari, and the American Enterprise Institute for kindly inviting me to this conference and to my clerks, Hannah Templin and Chris Ioannou, for outstanding research assistance.

[1] Emp. Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment)).

[2] Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).

[3] Id. at 537–38; James M. Oleske, Jr., Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws, 19 Animal L. 295, 299 (2013).

[4] Fraternal Ord. of Police Newark Lodge v. City of Newark, 170 F.3d 359, 360, 365–66 (3d Cir. 1999).

[5] Id. at 365.

[6] Id. at 366–67; see also Oleske, supra note 4, at 309.

[7] See Richard F. Duncan, Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. Pa. J. Const. L. 850, 873–74 (2001).

[8] 34 Pa. Cons. Stat. §§ 2901(d), 2965.

[9] Blackhawk v. Pennsylvania, 381 F.3d 202, 210 (3d Cir. 2004).

[10] Id. at 209.

[11] Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2604 (2020) (Alito, J., dissenting from denial of injunction).

[12] S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021).

[13] 141 S. Ct. 1868, 1919–21 (2021) (Alito, J., concurring in the judgment) (citing Fraternal Order of Police).

[14] See, e.g., Ronald Brownstein, The Supreme Court Is Colliding With a Less-Religious America, The Atlantic, Dec. 3, 2020.

[15] See, e.g., Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, 48 B.C. L. Rev. 781, 787–88 & n.41 (2007).

[16] 403 U.S. 602 (1971).

[17] Id. at 612.

[18] See id.

[19] Id. at 613 (internal quotation marks omitted).

[20] See generally Patrick M. Garry, Establishment Clause Jurisprudence Still Groping for Clarity: Articulating a New Constitutional Model, 12 Ne. Univ. L. Rev. 660 (2020).

[21] See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427–28 (2022) (“abandon[ing]” Lemon for an “analysis focused on original meaning and history”).

[22] Am. Legion v. Am. Humanist Soc’y, 139 S. Ct. 2067, 2080–81 (2019) (Alito, J., plurality opinion in relevant part).

[23] Town of Greece v. Galloway, 572 U.S. 565, 597 (2014) (Alito, J., concurring).

[24] Kennedy, 142 S. Ct. at 2431.

[25] ACLU of N.J. v. Schundler, 168 F.3d 92, 94–95 (3d Cir. 1999) (Alito, J.) (describing the town’s several-decades-old Christmas tree and menorah display).

[26] Id. at 95.

[27] 465 U.S. 668 (1984).

[28] Id. at 690 (O’Connor, J., concurring).

[29] 492 U.S. 573, 592–94, 602 (1989).

[30] Schundler, 168 F.3d at 107 (3d Cir. 1999) (Alito, J.).

[31] Id. at 109–13 (Nygaard, J., dissenting).

[32] Id. at 113 (Nygaard, J., dissenting) (“The inconsistent results in this Court can be directly attributed to the insufficient and inconsistent guidance given to the inferior federal courts[.]”).

[33] Id. at 106–07 (Alito, J.) (internal quotation marks omitted).

[34] Town of Greece v. Galloway, 572 U.S. 565, 602–03 (2014) (Alito, J., concurring).

[35] Am. Legion, 139 S. Ct. at 2087–89 (Alito, J., plurality opinion in relevant part).

[36] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427–28 (2022) (citing Town of Greece and American Legion).

[37] Child Evangelism Fellowship v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004).

[38] See id. at 521.

[39] Id. at 523.

[40] Id. at  523 (3d Cir. 2004).

[41] Id. at 534–35.

[42] Id.

[43] Id. at 530–34.

[44] Id. at 530–31 (citing Bd. of Educ. of the Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 252 (1990); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394–97 (1993); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–20 (2001)).

[45] Id. at 531–32 (internal quotation marks omitted); accord C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 212 (3d Cir. 2000) (en banc) (Alito, J., dissenting).

[46] Child Evangelism, 386 F.3d at 535 (citing Lee v. Weisman, 505 U.S. 577, 587 (1992)).

[47] Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30 (2d Cir. 2011).

[48] Id. at 46 (2d Cir. 2011).

[49] 137 S. Ct. 2012 (2017); 140 S. Ct. 2246 (2020); 142 S. Ct. 1987 (2022); 142 S. Ct. 2407 (2022).

[50] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)

[51] Id. at 509.

[52] Id. at 513.

[53] Child Evangelism, 386 F.3d at 527.

[54] Id. at 530 (quoting the school lawyer’s defense of its actions).

[55] C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000) (en banc).

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] C.H. ex rel. Z.H. v. Oliva, 195 F.3d 167, 174 (3d Cir. 1999).

[61] Id. at 175.

[62] C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 210 (3d Cir. 2000) (en banc) (Alito, J., dissenting).

[63] Id. at 213.

[64] Id.

[65] Id.

[66] Morse v. Frederick, 551 U.S. 393, 423 (2007) (Alito, J., concurring).

[67] Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2055, (2021) (Alito, J., concurring).

[68]Id. at 2055, 2058 (2021) (Alito, J., concurring).

[69] Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 203 (3d Cir. 2001).

[70] Id.

[71] Id. at 205–06 (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 651 (1999)).

[72] Id. at 206.

[73] Id. at 209–10.

[74] Id. at 210 (quoting Texas v. Johnson, 491 U.S. 397, 408–09 (1989)) (internal quotation marks omitted).

[75] Id. at 211; see also Abby Marie Mollen, In Defense of the “Hazardous Freedom” of Controversial Student Speech, 102 Nw. Univ. L. Rev. 1501, 1521–22 (2008).

[76] Saxe, 240 F.3d at 215.

[77] Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1183 n.28 (9th Cir. 2006), vacated as moot, 549 U.S. 1262 (2007). See generally Kristi L. Bowman, Public School Students’ Religious Speech and Viewpoint Discrimination, 110 W. Va. L. Rev. 187, 205–07 (2007) (contrasting the two cases).

[78] Compare, e.g., 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021), cert granted (U.S. Feb. 22, 2022) (No. 21-476), and Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), with Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019).

[79] 576 U.S. 644, 741 (2015) (Alito, J., dissenting).

[80] Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719 (2018).

[81] Samuel A. Alito, Assoc. Just. Sup. Ct., Keynote Address at the Federalist Society Lawyers Convention (Nov. 12, 2020), https://www.rev.com/blog/transcripts/supreme-court-justice-samuel-alito-speech-transcript-to-federalist-society [https://perma.cc/G9UN-KJRJ].

[82] Id.

[83] Id. (quoting Learned Hand, District Court Judge, Speech in Central Park, New York: The Spirit of Liberty (May 21, 1944)).

[84] Samuel A. Alito, Assoc. Just. Sup. Ct., Remarks on the Leonard I. Garth Atrium Dedication (2011), https://web.microsoftstream.com/video/2107c44b-e006-4e28-a5d6-3948ea5fae05 (remarks at 58:31–58:59).

[85] Id.