{"id":2726,"date":"2023-04-24T10:07:41","date_gmt":"2023-04-24T14:07:41","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2726"},"modified":"2025-12-20T22:15:30","modified_gmt":"2025-12-21T02:15:30","slug":"justice-alito-on-criminal-law-kate-stith","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/justice-alito-on-criminal-law-kate-stith\/","title":{"rendered":"Justice Alito on Criminal Law \u2013 Kate Stith"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

Justice Alito on Criminal Law<\/h2>\n\n\n\n

Kate Stith*<\/sup><\/strong><\/p>\n\n\n\n

I.               Introduction<\/h2>\n\n\n\n

Justice Samuel A. Alito is a natural judge\u2014by temperament, character, disposition, and experience. What do I mean by a \u201cnatural judge\u201d? It is difficult to conceive of Justice Alito accepting a legal position where he would have to perform as a pure advocate<\/em>, which he knows may require mincing words, shading nuance, and hiding the ball. Indeed, Alito\u2019s entire career as a lawyer\u2014both within the U.S. Department of Justice and in the federal judiciary\u2014has been defined, in part, by ethical norms and standards of straightforward and honest lawyering.[1]<\/a><\/p>\n\n\n\n

This chapter concerns itself with the corner of Justice Alito\u2019s jurisprudence dedicated to the criminal law. Justice Alito\u2019s 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.<\/p>\n\n\n\n

To begin, I should clarify what I mean (and what I do not mean) by \u201ccriminal law.\u201d When I say criminal law, what I really mean is substantive <\/em>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.<\/p>\n\n\n\n

As Justice Scalia once noted, \u201cWe live in an age of legislation, and most new law is statutory law.\u201d[2]<\/a> Every actor in a criminal case\u2014whether the prosecutor, the defendant, or the judge\u2014must 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.<\/p>\n\n\n\n

I focus on two aspects of federal criminal law that have been of particular concern to Justice Alito\u2014the categorical approach and mens rea. The former addresses primarily how Congress has instructed federal courts to sentence repeat offenders (or \u201ccareer criminals\u201d in the words of Congress),[3]<\/a> while the latter addresses what mental state is required while committing the crime at issue.<\/p>\n\n\n\n

Justice Alito\u2019s 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\u2019s 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\u2019 problematic real-world consequences. In one criminal-law dissent emblematic of his pragmatism, Justice Alito noted that the \u201cwell-known medical maxim\u2014\u2018first, do no harm\u2019\u2014is a good rule of thumb for courts as well.\u201d[4]<\/a> As we shall see, this is a precept Justice Alito follows too.<\/p>\n\n\n\n

II.             The Categorical Approach<\/h2>\n\n\n\n

The categorical approach is, in Justice Alito\u2019s words, the result of \u201cpointless abstract questions\u201d for \u201caficionados of pointless formalism.\u201d[5]<\/a> The Justice\u2019s sharp words make the categorical approach an irresistible\u2014though highly convoluted\u2014window into his pragmatic jurisprudence.<\/p>\n\n\n\n

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)\u2014a 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\u2019s 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]<\/a><\/p>\n\n\n\n

For instance, the bare crime of being a felon in possession of a firearm has a ten-year maximum penalty.[7]<\/a> But if an individual convicted under the felon-in-possession statute has three or more previous felony convictions for a \u201cviolent felony\u201d or a \u201cserious drug offense,\u201d the sentencing consequences are much more severe. Instead of a ten-year maximum sentence, the defendant is subject to a mandatory minimum<\/em> sentence of fifteen years.[8]<\/a> But how is the judge to determine whether a prior offense is \u201cviolent\u201d or \u201cserious\u201d? In 1990, the Supreme Court in an opinion by Justice Blackmun,[9]<\/a> 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]<\/a> to ignore the facts of a defendant\u2019s actual conduct and instead look only to the text of the statute under which the defendant was previously convicted.[11]<\/a><\/p>\n\n\n\n

For both the lawyers and nonlawyers among us, the categorical approach may seem a soporific example to pick in cataloguing Justice Alito\u2019s jurisprudence. But as the Justice\u2019s 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\u2019s 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\u2019s most important opinions on this topic, which put his pragmatism on full display.<\/p>\n\n\n\n

* * *<\/p>\n\n\n\n

As noted, the categorical approach\u2019s journey began more than thirty years ago, with the Supreme Court\u2019s first interpretation of ACCA.[12]<\/a> In the 1980s, Congress turned its attention to \u201ccareer\u201d criminals and sought to \u201cincrease the participation of the Federal law enforcement system in efforts to curb armed, habitual (career) criminals\u201d in the states.[13]<\/a> Congress noted the proliferation of \u201ccrimes involving theft or violence . . . by a very small percentage of repeat offenders.\u201d[14]<\/a> In its contemporary and amended form, ACCA\u2019s fifteen-year mandatory minimum applies to a person who commits a felony punishable by greater than one year and \u201chas three previous convictions by any court . . . for a violent felony or a serious drug offense.\u201d[15]<\/a> A prior conviction may arise from any court (state or federal).[16]<\/a> Because most felonies are prosecuted in state court, this means that in most cases, a federal court must determine whether a prior state<\/em> offense counts as a \u201cviolent felony\u201d or \u201ca serious drug offense\u201d under ACCA.<\/p>\n\n\n\n

ACCA does not instruct judges how to make that determination. Neither Congress nor any state legislature has a list of \u201cviolent\u201d offenses or of \u201cserious\u201d drug offenses; rather, each jurisdiction enacts prohibitions, which accumulate over the years.[17]<\/a> 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 \u201cserious\u201d\u2014the particular type of drug, the amount of the drug, or the role of the offender (as a \u201ckingpin,\u201d for example)?<\/p>\n\n\n\n

In the critical 1990 case that adopted the \u201ccategorical\u201d approach to answering these questions, Taylor v. United States<\/em>,[18]<\/a> the Court confronted whether a defendant\u2019s 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]<\/a> But if Missouri burglary did not count as a violent felony, then the defendant would not be subject to the enhanced sentence under ACCA.<\/p>\n\n\n\n

In resolving the question, the Court refused to look at the facts of Taylor\u2019s prior burglary conviction, which might have revealed whether Taylor actually burglarized violently or with a dangerous weapon.[20]<\/a> Instead, the Court adopted a \u201cformal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts.\u201d[21]<\/a> This approach requires a sentencing court to do a side-by-side comparison of two statutes: first, the federal statute defining a generic \u201cviolent felony\u201d or a \u201cserious drug offense,\u201d and, second, the statute defining the crime of prior conviction (e.g., the Missouri burglary statute at issue in Taylor<\/em>).[22]<\/a><\/p>\n\n\n\n

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 \u201cviolent felony\u201d or a \u201cserious drug offense.\u201d If the statute of prior conviction only reaches behavior within this definition of a \u201cviolent felony\u201d or a \u201cserious drug offense,\u201d 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 \u201cviolent felony\u201d or a \u201cserious drug offense\u201d under federal law, then the prior conviction does not<\/em> count toward the sentencing enhancement.<\/p>\n\n\n\n

For example, in Taylor <\/em>itself, the Court had to compare ACCA\u2019s definition of \u201cviolent felony\u201d to Missouri\u2019s definition of second-degree burglary. ACCA includes \u201cburglary\u201d in a list of violent felonies, but it leaves that term undefined\u2014a task the Supreme Court took on for itself. Whereas the federal definition of burglary only proscribes unauthorized entry into a \u201cbuilding or other structure,\u201d the Missouri definition of burglary also includes unauthorized entry into a \u201cboat or vessel.\u201d[23]<\/a> As a result of this mismatch, the Court held, Taylor\u2019s prior conviction therefore did not count toward ACCA\u2019s sentencing enhancement. The problem was that the Missouri statute punished certain types of conduct not prohibited under federal law (namely, burglary of a \u201cboat or vessel\u201d). 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.<\/p>\n\n\n\n

But why ignore the facts of Taylor\u2019s 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 \u201cdaunting\u201d reality of rifling through the record, \u201cpractical difficulties[,] and potential unfairness\u201d of fact-bound inquiries.[24]<\/a> The categorical approach\u2019s 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\u2019s prior conviction also avoids the question whether such inquiry comes within Apprendi<\/em>\u2019s demands that sentencing factors enhancing punishment must be admitted by the defendant or proved beyond a reasonable doubt to a jury.[25]<\/a><\/p>\n\n\n\n

And so the Court embarked on a course that would employ \u201cuniform, categorical definitions to capture all offenses of a certain level of seriousness . . . regardless of technical definitions and labels under state law.\u201d[26]<\/a> By carefully sticking with categorical definitions, sentencing courts would avoid the \u201cunfairness\u201d of enhancing a defendant\u2019s sentence based on the mere \u201clabel employed by the State of conviction.\u201d[27]<\/a><\/p>\n\n\n\n

Fifteen years after Taylor<\/em>, 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<\/em> v. United States<\/em> 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 \u201cmodified categorical approach.\u201d Under the modified categorical approach, a sentencing court may review the terms of the charging document, plea agreement, colloquy transcript, or \u201csome comparable judicial record\u201d of the factual basis of the conviction.[28]<\/a> Taylor<\/em> had abjured any review of such documents (now known as Shepard<\/em> documents). While Shepard <\/em>opened the door to some consideration of the actual facts of the defendant\u2019s 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<\/em> and Shepard <\/em>documents would be useful to determine which of those crimes the defendant was convicted.[29]<\/a> Critically, this means that where a statute merely defines multiple means <\/em>of committing a single crime, the traditional categorical approach of Taylor<\/em> applies\u2014and the factual basis of the conviction is entirely off the table.<\/p>\n\n\n\n

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<\/em>, Justice Alito applied the categorical approach to find that the attempted burglary at issue counted as a \u201cviolent felony\u201d under ACCA\u2019s residual clause.[30]<\/a> In United States v. Rodriquez<\/em>, he similarly wrote for the Court that a Washington drug-trafficking felony counted as a \u201cserious drug offense\u201d under ACCA.[31]<\/a><\/p>\n\n\n\n

Although he applied the categorical approach, even in these early cases he registered concerns about rigid application without attention to practical consequences. In James<\/em>, he pointed out that this mode of statutory interpretation should not require \u201cmetaphysical certainty\u201d as to the scope of the statute of prior conviction; rather, sentencing courts must look for a \u201crealistic probability, not a theoretical possibility, that\u201d the statute of prior conviction encompasses behavior not included in the federal definition.[32]<\/a> Moreover, in Rodriquez<\/em>, Justice Alito rebuffed the claim that inquiries into \u201cnovel questions of state law and complex factual determinations\u201d are necessarily \u201cdifficult.\u201d[33]<\/a> Sentencing courts could easily look to Shepard<\/em> documents, including formal charging documents and plea colloquies.[34]<\/a> And a \u201cmere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.\u201d[35]<\/a><\/p>\n\n\n\n

Justice Alito\u2019s unease with the categorical approach became far more pronounced by 2010. In Johnson v. United States<\/em>, the Supreme Court had to decide whether Florida felony battery by \u201cactually and intentionally touching\u201d the victim constituted a violent felony under ACCA.[36]<\/a> Prosecutors sought an enhanced penalty under that Act, but Johnson objected to the categorization of his 2003 Florida conviction for simple battery as a \u201cviolent felony.\u201d[37]<\/a> Under Florida law, battery may occur in any of three ways: if the defendant \u201c[i]ntentionally caus[ed] bodily harm,\u201d \u201cintentionally str[uck]\u201d the victim, or \u201c[a]ctually and intentionally touche[d]\u201d the victim.\u201d[38]<\/a> The court records of Johnson\u2019s prior simple-battery conviction were unavailable, so no Shepard <\/em>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 \u201cthe least of these acts,\u201d namely \u201cactually and intentionally touching.\u201d[39]<\/a> The Court read ACCA\u2019s \u201cphysical force\u201d provision to require force that is violent.[40]<\/a> Following this definition, the majority reasoned that \u201ctouching\u201d 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]<\/a><\/p>\n\n\n\n

In dissent, Justice Alito strongly objected on several grounds to the majority\u2019s characterizations and reasoning. He first challenged the Court\u2019s tortured understanding of \u201cphysical force\u201d as requiring violence\u2014which he persuasively demonstrated does not accord with the common-law definition of \u201cforce.\u201d[42]<\/a> From there, Justice Alito noted the inevitable \u201cuntoward consequences\u201d of the majority\u2019s interpretation of Florida\u2019s battery offense for the purposes of ACCA.[43]<\/a> Numerous states are like Florida: they have indivisible battery provisions \u201cgovern[ing] both the use of violent force and offensive touching,\u201d and charging instruments and jury instructions that \u201csimply track the language of the statute\u201d without distinguishing the type of force used by the defendant.[44]<\/a> 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 \u201cnonviolent\u201d under the Court\u2019s approach, it cannot qualify as an ACCA predicate even if committed in a violent manner.<\/p>\n\n\n\n

The Court waved away Justice Alito\u2019s concerns, noting that the government had on some occasions successfully used the modified categorical approach with Shepard <\/em>documents. At the same time, the court did acknowledge that the \u201cabsence of records will often frustrate application of the modified categorical approach\u2014not just to battery but to many other crimes as well.\u201d[45]<\/a><\/p>\n\n\n\n

Justice Alito also worried in Johnson <\/em>that the majority would \u201chobble at least two federal statutes\u201d that also contain the term \u201cphysical force.\u201d[46]<\/a> Under 18 U.S.C. \u00a7 922(g)(9), a person convicted of a \u201cmisdemeanor crime of domestic violence\u201d may not lawfully possess a firearm, and \u201cmisdemeanor crime of violence\u201d is defined to include crimes with \u201can element, the use or attempted use of physical force.\u201d[47]<\/a> And under 8 U.S.C. \u00a7 1227(a)(2)(E), an alien convicted of a \u201ccrime of domestic violence\u201d is subject to removal, with \u201ccrime of domestic violence\u201d defined to include an offense with \u201can element the use [or] attempted use . . . of physical force.\u201d[48]<\/a> If Johnson<\/em>\u2019s definition of \u201cphysical force\u201d 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.<\/p>\n\n\n\n

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 \u201cresidual clauses.\u201d Residual clauses generally encompass any \u201cviolent felony\u201d (or the analogous \u201ccrime of violence\u201d), as defined to include offenses that that pose a sufficient degree of \u201crisk\u201d of physical injury.[49]<\/a> Since the dawn of the categorical era, judges had been required to apply that approach to determine whether the \u201cordinary case\u201d of the prior crime at issue surpassed the risk threshold so to count as a violent felony under the applicable residual clause.[50]<\/a> However, in 2015, the Supreme Court held (per Justice Scalia) in Johnson v. United States<\/em> that ACCA\u2019s residual clause was unconstitutionally vague because of the \u201cunpredictability and arbitrariness\u201d of judges applying the categorical approach to determine what conduct possessed sufficient risk.[51]<\/a> And in 2018[52]<\/a> and 2019[53]<\/a> the Court applied Johnson <\/em>to hold nearly identical residual clauses in two other federal statues unconstitutionally vague.<\/p>\n\n\n\n

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<\/em>, the Court considered ACCA\u2019s residual clause\u2014which, had it not been struck down as unconstitutionally vague, would have had the effect of enhancing an already convicted defendant\u2019s sentence on his current federal offense. In the 2019 case, United States v. Davis<\/em>, the residual clause at issue also sought to define \u201ccrime of violence.\u201d[54]<\/a> But the operative effect of applying this residual clause would not be to enhance the sentence for the defendant\u2019s current offense. Rather, the residual clause in Davis <\/em>was part of the substantive offense that the defendant was convicted of in the case-at-hand\u2014here, using a gun in furtherance of any federal \u201ccrime of violence.\u201d[55]<\/a> Simply put, if the residual clause in Davis <\/em>was found unconstitutional, then the prohibition itself was unconstitutional and a defendant could not be prosecuted under it. In light of the Court\u2019s holding, post-Davis<\/em> defendants challenging their convictions under this residual clause will have their convictions thrown out entirely.<\/p>\n\n\n\n

Writing in dissent,[56]<\/a> Justice Kavanaugh\u2014joined by Justices Thomas and Alito and in relevant part by Chief Justice Roberts\u2014despaired the practical implications that Justice Alito had predicted in Johnson<\/em>: namely, all sorts of offenders convicted under the residual clause could now seek to vacate their convictions. To illustrate the absurdity of the Court\u2019s 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]<\/a> By constraining the Court to consider the \u201cimagined conduct of a hypothetical defendant rather than [] the actual conduct of the actual defendant,\u201d the categorical approach has yielded \u201cserious consequences.\u201d[58]<\/a><\/p>\n\n\n\n

Justice Alito reserved his strongest criticisms of the categorical approach for his dissent in Mathis v. United States<\/em>, issued in 2016.[59]<\/a> As others have noted, Justice Alito\u2019s Mathis<\/em> dissent is \u201ccrucial [to an] understanding of his jurisprudence.\u201d[60]<\/a> In Mathis<\/em>, the Supreme Court confronted a categorical-approach question nearly identical to Taylor<\/em>\u2019s: whether Iowa burglary, which reaches unauthorized entry into any \u201cbuilding, structure, [or] land, water, or air vehicle,\u201d counts as a burglary under ACCA, which only reaches unauthorized entry into a \u201cbuilding or other structure.\u201d[61]<\/a> The more precise (if mind-numbing) question before the Court was whether the modified categorical approach (where the sentencing court may review Shepard<\/em> documents to narrow its inquiry) applied to a statute listing \u201cmultiple, alternative means<\/em> of satisfying one (or more) of its elements,\u201d as opposed to alternative<\/em> elements.[62]<\/a><\/p>\n\n\n\n

The Iowa burglary statute was undoubtedly broader than the federal definition of burglary under the approach of Taylor<\/em>. But in Mathis<\/em>, the Solicitor General invited the Court to loosen its formalism. If the sentencing court could review Shepard<\/em> documents, it might conclude that Mathis had in fact burglarized a \u201cbuilding or other structure\u201d within the meaning of ACCA and his prior conviction for Iowa burglary would \u201ccount\u201d toward ACCA\u2019s sentencing enhancement.[63]<\/a> Six members of the Court declined the Solicitor General\u2019s invitation,[64]<\/a> reasoning that the Iowa burglary statute\u2019s elements are broader than the federal definition of battery no matter \u201c[h]ow a given defendant actually perpetrated the crime . . .[or] the \u2018underlying brute facts or means\u2019 of commission.\u201d[65]<\/a> The Court refused to stray course from Taylor<\/em> and Shepard<\/em> based on the text of ACCA, Sixth Amendment Apprendi<\/em> concerns, and avoiding unfairness arising from possible \u201cerrors\u201d in the trial record related to statutory means of committing an offense.[66]<\/a><\/p>\n\n\n\n

In his memorable and withering dissent, Justice Alito compared the Court\u2019s 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]<\/a> With the categorical approach first programmed into the Court\u2019s GPS in Taylor <\/em>in 1990, \u201cthe Court set out on a course that has increasingly led to results that Congress could not have intended.\u201d[68]<\/a><\/p>\n\n\n\n

Here we may review a few examples from cases in which Justice Alito had previously opined. As the Justice noted in Mathis<\/em>, the result of that decision would be that burglary convictions in many states could be disqualified from counting as violent felonies under ACCA,[69]<\/a> just as under Descamps v. United States<\/em>, no California burglary conviction could count under ACCA.[70]<\/a> Moncrieffe v. Holder<\/em> had rendered convictions in nearly half the states for large-scale drug trafficking to not count as \u201cillicit trafficking in a controlled substance\u201d under the immigration laws.[71]<\/a> We may add that the year before Mathis, <\/em>Justice Alito joined Justice Thomas\u2019s dissent in Mellouli v. Lynch<\/em>,[72]<\/a> rejecting the majority\u2019s holding that if a state\u2019s drug schedule includes substances not included on the federal drug schedule, a state drug offense may not constitute a \u201cviolation of . . . any law . . . relating to a controlled substance,\u201d which is a ground for removal under the Immigration and Nationality Act.[73]<\/a> This Term, in United States v. Taylor<\/em>, Justice Alito dissented from the Court\u2019s \u201cveer[ing] off into fantasy land\u201d when it held that an attempted Hobbs Act robbery did not constitute a \u201ccrime of violence\u201d in a case where a defendant\u2019s accomplice shot and killed the attempted-robbery victim.[74]<\/a> As Justice Alito proclaimed in Mathis, <\/em>the Court had ignored the \u201cwarning bell\u201d of such anomalous results and \u201cke[pt] its foot down and drive[n] on\u201d with the categorical approach.[75]<\/a> Justice Alito despaired that such anomalies are the inevitable result of the Court\u2019s unceasing formalism.<\/p>\n\n\n\n

Adding insult to injury, the categorical approach\u2019s premium for abstract inquiry often leaves sentencing courts up a creek without a paddle. The threshold element\/means distinction at issue in Mathis<\/em> 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<\/em> only seemed \u201ceasy,\u201d Justice Alito explained\u2014in a not-atypical insight borne of his penchant for legal realism\u2014because Mathis had a \u201cfortified legal team that took over [his] representation after this Court granted review [and] found an Iowa case on point.\u201d[76]<\/a> 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.<\/p>\n\n\n\n

Drawing on his decade on the Supreme Court bench at the time of Mathis<\/em>, Justice Alito offered an alternative, an approach for the \u201creal world,\u201d[77]<\/a> that would avoid the mess of the categorical approach:<\/p>\n\n\n\n

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]<\/a><\/p>\n\n\n\n

As Justice Alito had suggested before in Descamps<\/em>,[79]<\/sup><\/a> 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 \u201cviolent felony\u201d or \u201cserious drug offense,\u201d the prior conviction won\u2019t count. In Justice Alito\u2019s view, the Court should discontinue its practice of concocting hypothetical crimes and fact patterns and shed the conceit that \u201c[r]eal-world facts are irrelevant.\u201d[80]<\/sup><\/a> Like Ms. Moreau, the Court has driven past numerous signs that it is \u201coff course,\u201d but it has rebuffed \u201copportunities to alter its course. . . , traveling even further away from the intended destination.\u201d[81]<\/a><\/p>\n\n\n\n

* * *<\/p>\n\n\n\n

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]<\/a> For example, in the United States v. Taylor<\/em> case decided in 2022,[83]<\/a> Justice Thomas expressed openness to abandoning the categorical approach and adopting a conduct-based approach akin to Justice Alito\u2019s proposal in Mathis<\/em>. At oral argument, Thomas asked both the government and respondent to game out what would happen \u201cif we could abandon the categorical approach.\u201d[84]<\/a> Naturally, the government noted that it had not briefed the issue but would welcome such a change in light of \u201cthe judicial . . . chorus of complaints about the categorical approach that has been growing ever louder.\u201d[85]<\/a> Although the case was decided 7-2 with Justices Alito and Thomas in dissent, Thomas took the opportunity to recommend overruling the Court\u2019s categorical-approach precedents, which have \u201cled the Federal Judiciary on a \u2018journey Through the Looking Glass.\u2019\u201d[86]<\/a> Like Justice Alito, Thomas would extinguish the categorical approach\u2019s reliance on hypothetical defendants committing hypothetical crimes and instead adopt a \u201cconduct-based approach\u201d into the defendant\u2019s actual conduct to determine whether a prior offense constitutes a violent felony or crime of violence.[87]<\/a><\/p>\n\n\n\n

Justice Alito\u2019s 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 \u201cabsurdity of the exercise\u201d of the categorical approach, which requires judges to \u201cignore the actual facts before them and instead to theorize about whether certain crimes could be committed without violent force.\u201d[88]<\/a> The categorical approach \u201cperverts the will of Congress, leads to inconsistent results, wastes judicial resources, and undermines confidence in the administration of justice.\u201d[89]<\/a> Judge Park went on to cite sixteen federal-court opinions concurring with this sentiment, further measuring the reach of Justice Alito\u2019s concerns.[90]<\/a><\/p>\n\n\n\n

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\u2019s Taylor<\/em> decision concerning attempted Hobbs Act robbery.[91]<\/a> Judge Raggi noted the irony that in a case where there is \u201cno question\u201d that the crime of conviction \u201cwas violent, even murderous,\u201d the conviction must be vacated in part because it cannot be deemed a crime of violence through the \u201ccommands [of] the categorical approach.\u201d[92]<\/a><\/p>\n\n\n\n

Judge William Pryor of the Eleventh Circuit put his disdain for the categorical approach more simply: \u201cIt\u2019s nuts.\u201d[93]<\/a> He asked, \u201cHow did we ever reach the point where\u201d we \u201cmust 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.\u201d[94]<\/a> If Justice Alito could respond to Judge Pryor\u2019s charge that the criminal-justice system must navigate out of the categorical-approach quagmire, he might warn Judge Pryor, \u201cDon\u2019t trust your GPS.\u201d<\/p>\n\n\n\n

III.           Mens Rea<\/h2>\n\n\n\n

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\u2019s decisions. Unlike the categorical-approach context, where criminal liability is not typically at issue,[95]<\/a> mens rea is often a defendant\u2019s best and last line of defense. Mens rea is derived from the classic maxim, actus non facit reum, nisi mens sit rea<\/em>,[96]<\/a> or as William Blackstone translated it, \u201can unwarrantable act without a vicious will is no crime at all.\u201d[97]<\/a> 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\u2019s an act, result, or the circumstances surrounding the crime).<\/p>\n\n\n\n

Like most legal precepts, the necessity of mens rea is not without its exceptions,[98]<\/a> 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]<\/a> In most situations, the higher the level of mens rea, the steeper the government\u2019s evidentiary burden in proving criminal liability. Where there is no direct evidence of the defendant\u2019s mental state, but the defendant clearly engaged in the charged conduct, the defendant\u2019s 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.<\/p>\n\n\n\n

In the categorical-approach context, Justice Alito voiced his concern with formalism obfuscating the facts of a defendant\u2019s 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 \u201cgeneral presumption\u201d\u2014such as that a statutorily \u201cspecified mens rea<\/em> applies to all the elements of an offense\u201d\u2014he pragmatically insists on leaving room for \u201cinstances in which context may well rebut that presumption.\u201d[100]<\/a> As the following cases reflect, \u201ccontext\u201d to Justice Alito typically entails the possibility of \u201codd results,\u201d the risk of opening the floodgates of litigation, and the need for clear and stable precedent.[101]<\/a><\/p>\n\n\n\n

A revealing example is Justice Alito\u2019s dissent in Elonis v. United States<\/em>, decided in 2015.[102]<\/a> In Elonis<\/em>, the defendant was convicted of violating 18 U.S.C. \u00a7 875(c), which makes it a crime to transmit in interstate commerce \u201cany communication containing any threat . . . to injure the person of another.\u201d[103]<\/a> After his wife left him, Elonis posted rap songs on Facebook containing violent imagery.[104]<\/a> Although Elonis included disclaimers about his innocent intentions, his wife sought a state-court order of protection.[105]<\/a> Elonis remained undeterred.[106]<\/a> At issue was the proper mens rea corresponding to Elonis\u2019s 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\u2014the lowest level of mens rea.[107]<\/a> In other words, the government had to show that Elonis was negligent with respect to the threatening nature of his communications.<\/p>\n\n\n\n

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]<\/a> the Court observed \u201cthe conventional requirement for criminal conduct [is] awareness <\/em>of some wrongdoing.\u201d[109]<\/a> This conventional requirement instructs reluctance to infer a negligence standard.[110]<\/a> The silence on mens rea in the prohibition Elonis was convicted of violating did \u201cnot mean that none exists\u201d and \u201cmere omission from a criminal enactment of any mention of criminal intent\u201d should not be read \u201cas dispensing with it.\u201d[111]<\/a> 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<\/em> 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 \u00a7 875(c).[112]<\/a><\/p>\n\n\n\n

Quite deliberately, the Court did not answer whether recklessness, knowledge, or purpose would suffice for liability under \u00a7 875(c).[113]<\/a> In light of the brief lip service to this question during oral argument and there being \u201cno circuit conflict over the question\u201d in the majority\u2019s view, a merits decision on the precise mens rea required under \u00a7 875(c) was inappropriate.[114]<\/a><\/p>\n\n\n\n

Without missing a beat, Justice Alito picked up on the Court\u2019s omission. Noting that Marbury v. Madison<\/em>\u2019s had \u201cfamously proclaimed\u201d that the judicial department must \u201csay what the law is,\u201d Justice Alito said the majority opinion had failed in that regard and instead had announced, \u201cIt is emphatically the prerogative of this Court to say only what the law is not<\/em>.\u201d[115]<\/a> The Court\u2019s decision not to clarify the required mens rea under \u00a7 875(c) \u201cis certain to cause confusion\u201d and \u201cregrettable consequences\u201d among the lower courts.[116]<\/a> Unlike the Supreme Court, which \u201chas the luxury of choosing its docket,\u201d lower courts and juries \u201cmust actually decide cases,\u201d which means \u201capplying a standard.\u201d[117]<\/a> 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]<\/a><\/p>\n\n\n\n

Concurring in the judgment, Justice Alito would have found that recklessness is enough. He largely agreed with the majority\u2019s default presumption that \u00a7 875(c)\u2019s silence as to mental state should require a mens rea more than mere negligence. Following the Model Penal Code, Justice Alito would infer recklessness \u201cwhen Congress does not specify a mens rea<\/em> in a criminal statute,\u201d but go no further toward knowledge or purpose.[119]<\/a> In his view, \u201c[t]here can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct.\u201d[120]<\/a> 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\u2019s \u201crazor-thin distinction[s]\u201d between purpose and knowledge and the \u201cconsiderable difference between\u201d knowledge and recklessness.[121]<\/a> Depending on the proper level of mens rea, the government\u2019s burden could therefore vary significantly without further instruction from the Court.<\/p>\n\n\n\n

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 \u00a7 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 \u00a7 875(c) and a district court instructs the jury that proof of knowledge or purpose is required, a guilty defendant may be acquitted. With \u201c[a]ttorneys and judges . . . left to guess,\u201d[122]<\/a> all parties\u2014defendants included\u2014are 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.<\/p>\n\n\n\n

Four years later, in Rehaif v. United States<\/em>, Justice Alito expressed similar, though distinct, concerns that the Court\u2019s novel reading of the commonly charged firearm-in-possession prohibition[123]<\/a> would both make it extremely difficult to prove mens rea in many cases, as well as \u201copen[] the gates to a flood of litigation.\u201d[124]<\/a> 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]<\/a> Thereafter, Rehaif visited a firing range, and he shot two firearms.[126]<\/a> The government then charged Rehaif under 18 U.S.C. \u00a7 922(g), which provides \u201c[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.\u201d[127]<\/a> Under the relevant sentencing provision, \u00a7 924(a)(2), \u201c[w]hoever knowingly violates\u201d \u00a7 922(g) \u201cshall be fined . . . [or] imprisoned not more than 10 years, or both.\u201d[128]<\/a> The question presented to the Supreme Court was whether the government only had to prove that Rehaif \u201cknowingly\u201d possessed a firearm, or whether the government additionally had to prove Rehaif had a mens rea of knowledge as to his status as \u201can alien . . . illegally or unlawfully in the United States.\u201d[129]<\/a><\/p>\n\n\n\n

The majority, in an opinion by Justice Breyer, answered in the affirmative: under \u00a7 922(g) the government had to prove both<\/em> that Rehaif knew he was in possession of a firearm and <\/em>of his status as an unlawful alien. The Court adopted this interpretation for several reasons, including its \u201cordinary presumption in favor of scienter\u201d[130]<\/a> and the grammatical construction of the statute.[131]<\/a> Because the government failed to show Rehaif knew of his immigration status, the Court reversed Rehaif\u2019s conviction and remanded to the lower court.<\/p>\n\n\n\n

One immediate consequence of the Court\u2019s decision in Rehaif<\/em> was the decision\u2019s retroactive application. Because Rehaif<\/em> placed knowing possession of a firearm without knowledge of one\u2019s immigration status beyond the reaches of the extant federal criminal law, the decision would apply retroactively under the rule of Teague v. Lane<\/em>, permitting individuals currently imprisoned under \u00a7 922(g) to challenge the validity of their convictions within one year on federal collateral review.[132]<\/a> Defendants on direct review of \u00a7 922(g) convictions could also seek new trials on this basis.<\/p>\n\n\n\n

Justice Alito dissented, joined by Justice Thomas. He began by critiquing the majority so \u201ccasually\u201d overturning an interpretation of \u00a7 922(g) \u201cadopted by every single Court of Appeals\u201d and \u201cused in thousands of cases for more than 30 years.\u201d[133]<\/a> The Court\u2019s decision was \u201cno minor matter\u201d and disabled one of the nation\u2019s chief tools \u201cto combat gun violence.\u201d[134]<\/a> Moreover, the decision would create a \u201cmountain of problems\u201d and \u201cswamp the lower courts\u201d with thousands of prisoners seeking collateral relief on the claim that their \u00a7 922(g) convictions were defective for failure to charge or prove knowledge with respect to their status.[135]<\/a> Justice Alito, of course, recognized that the Court must enforce the laws of Congress \u201ceven if we think that doing so will bring about unfortunate results,\u201d but usually the Court requires \u201cclear indication of congressional intent\u201d before wreaking such havoc.[136]<\/a> Yet, in Rehaif<\/em>, the Court was intrigued by a \u201csuperficially appealing but ultimately fallacious argument\u201d and diverged from its usual practice of resolving conflicts among the lower courts, and preserving a long-established interpretation absent evidence that it had \u201cworked any serious injustice.\u201d[137]<\/a><\/p>\n\n\n\n

Justice Alito tried to set the record straight after the majority presented a \u201cbowdlerized version of the facts.\u201d[138]<\/a> The Court, in his view, sought to paint an \u201centirely imaginary case, a heartless prosecution,\u201d that would evoke sympathy for the Court\u2019s ultimately baseless statutory construction.[139]<\/a> 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]<\/a> Justice Alito appeared perturbed that the Court was pulling the wool over readers\u2019 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 \u201cbowdlerized\u201d Shepard<\/em> documents to reveal the facts underlying a conviction.<\/p>\n\n\n\n

Justice Alito\u2019s penchant for pragmatism is perhaps matched by his knack for metaphor\u2014in Mathis<\/em> analogizing the categorical approach to a discombobulated GPS, and in Rehaif<\/em>, analogizing the majority\u2019s \u201cpurportedly textualist argument\u201d to \u201ca magic trick.\u201d[141]<\/a> Because the firearm-in-possession statute\u2019s \u201cknowing\u201d mens rea requirement is housed in \u00a7 924(a)(2)\u2014an entirely separate provision from the firearm-possession prohibition itself, which is in \u00a7 922(g)\u2014\u201cany attempt to combine the relevant language\u201d of the two statutory provisions \u201cnecessarily entails significant choices that are not dictated by the text of those provisions.\u201d[142]<\/a> Rehaif naturally preferred applying the knowledge requirement broadly to include the status elements of \u00a7 922(g), because this would increase the government\u2019s burden. The Court fell for the defendant\u2019s move, which Justice Alito referred to as the trick \u201cpresto chango.\u201d[143]<\/a> But Justice Alito asserted that \u201c[t]he truth behind the illusion,\u201d is that under ordinary usage, four different readings of the statute are possible.[144]<\/a> The majority\u2019s sleight of hand was to suggest that among the four plausible interpretations, Congress intended for the option with \u201ca very high mens rea<\/em> requirement,\u201d requiring knowledge for the status element.[145]<\/a><\/p>\n\n\n\n

While this might not make much difference in many cases where the \u00a7 922(g) status at issue is unlawful presence in the country, it would enormously increase the government\u2019s 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<\/em> he had been convicted not just of a crime, but of a crime within the category of \u201cfelony.\u201d[146]<\/a> Typically, to avoid the introduction of evidence concerning a prior offense, a defendant will stipulate to his felon status, but after Rehaif<\/em>, the prosecution may need to offer evidence about the nature of the prior felony to allow the jury to infer knowledge\u2014quite a defendant-unfriendly consequence of the majority\u2019s holding.[147]<\/a> Moreover, if the knowledge requirement of a gun-possessor\u2019s status also applies to the prohibition on sale of firearms to persons falling within a \u00a7 922(g) category,[148]<\/a> it seems highly unlikely that most sellers will know whether the purchaser falls into one of the \u00a7 922(g) status categories.[149]<\/a> Finally, the Court\u2019s decision contravenes the \u201cpractical unanimity\u201d 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]<\/a><\/p>\n\n\n\n

Echoing his concerns in the residual-clause context discussed previously,[151]<\/a> Justice Alito\u2019s most prominent concern with Rehaif <\/em>was its inevitable opening of litigation floodgates. Because the Court\u2019s decision applied retroactively,[152]<\/a> the \u201c[t]ens of thousands of prisoners . . . currently serving sentences for violating 18 U.S.C. \u00a7 922(g)\u201d 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. \u00a7 2255.[153]<\/a> Those currently imprisoned for \u00a7 922(g) convictions may have their convictions vacated if they can demonstrate they are innocent of violating \u00a7 922(g), which, after Rehaif<\/em>, only requires showing they did not know they fell into a \u00a7 922(g) status category. The requirement that district courts \u201chold a hearing . . . and make a credibility determination as to the prisoner\u2019s subjective mental state at the time of the crime\u201d many years before \u201cwill 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 \u2018fixing.\u2019\u201d[154]<\/a> This too will not \u201cnecessarily be limited to \u00a7 922(g)\u201d and may spread to other statutes, Justice Alito worried.[155]<\/a><\/p>\n\n\n\n

Lower courts, prosecutors, and defendants would all pay the price of the Court\u2019s purportedly textualist decision, and Justice Alito quantified the number of \u00a7 922(g) offenders that could raise Rehaif<\/em> claims. According to the U.S. Sentencing Commission, in fiscal year 2020 alone, that number was 6,782 individuals.[156]<\/a> Justice Alito\u2019s concern with the real-world consequences of Rehaif<\/em> evince his hesitance to destabilize or set unclear precedents, especially in a case like Rehaif<\/em> where there was no lower-court conflict warranting the Court\u2019s review.<\/p>\n\n\n\n

As Justice Alito prophesied in 2019, Rehaif<\/em>\u2019s effects have now reached well beyond the ambit of \u00a7 922(g) status offenses. This past Term, in Ruan v. United States<\/em>, the Court applied Rehaif<\/em>\u2019s \u201cmens rea<\/em> canon,\u201d as Justice Alito dubbed it, whereby \u201cthe Court interprets criminal statutes to require a mens rea<\/em> for each element of an offense \u2018even where the most grammatical reading of the statute does not support\u2019 that interpretation.\u201d[157]<\/a> In Ruan<\/em>, the relevant provision of the Controlled Substances Act (CSA) makes it a federal crime \u201c[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance.\u201d[158]<\/a> The majority held that the mens rea requirement (\u201cknowingly or intentionally\u201d) applied to the \u201cexcept as authorized\u201d provision, requiring the government to prove beyond a reasonable doubt that a defendant \u201cknew that he or she was acting in an unauthorized manner, or intended to do so.\u201d[159]<\/a> The majority offered four justifications for this interpretation,[160]<\/a> although as Justice Alito points out, \u201c[i]t bases this conclusion not on anything in language of the CSA\u201d but rather the mens rea canon established in Rehaif<\/em>.[161]<\/a><\/p>\n\n\n\n

To Justice Alito, the Court\u2019s effort to apply the mens rea canon to the CSA \u201crests on an obvious conceptual mistake.\u201d[162]<\/a> The \u201c[e]xcept as authorized\u201d clause represents an affirmative defense, not an element, and the mens rea canon is inapt in this context.[163]<\/a> Alito bases this interpretation on several factors. First, \u201c[a]s a matter of elementary syntax,\u201d the \u201cknowingly and intentionally\u201d clause modifies the verbs that follow and do not operate backwards to the \u201cintroductory phrase \u2018except as authorized.\u2019\u201d[164]<\/a> As Justice Alito quipped at oral argument, \u201c[W]e are interpreting statutes and regulations, and maybe we ought to start with what they actually say.\u201d[165]<\/a> Second, the authorization clause \u201clacks the most basic features of an element of an offense,\u201d such as mandatory inclusion in every \u00a7 841 indictment.[166]<\/a> Yet, the CSA specifically provides that it is not \u201cnecessary for the United States to negative any exception or exception set forth in [the relevant subchapter],\u201d implying the authorization clause lacks one of the key indicia of statutory elements.[167]<\/a> Third, the authorization clause operates as a proviso giving \u201cjustification or excuse\u201d for conduct that otherwise satisfies the elements of an offense.[168]<\/a> Under the Court\u2019s precedents, \u201can exception made by a proviso\u201d designates an \u201caffirmative defense that the Government has no duty to \u2018negative.\u2019\u201d[169]<\/a> 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]<\/a><\/p>\n\n\n\n

In this most recent example of Justice Alito\u2019s mens rea jurisprudence we observe two of his trademarks. First, the Justice recoils at the Court\u2019s 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 \u201csound\u201d and \u201cjust\u201d manner, the Court has effectively usurped Congress\u2019s role in defining the elements of a criminal offense.[171]<\/a> Not to mention the majority\u2019s trampling of ordinary usage and grammar. The Ruan<\/em> Court also stumbled over the subtle distinction between the mens rea canon illuminating what Congress<\/em> intended to include as an element and what the Justices<\/em> 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\u2019s command of separation of powers.<\/p>\n\n\n\n

Second, and relatedly, Justice Alito warns that when the Court reaches for a \u201csound\u201d or \u201cjust\u201d result in the criminal law, it ignores the cascading consequences. The Ruan <\/em>Court\u2019s elision of the element \/ affirmative defense distinction in the name of lenity makes it unclear \u201c[h]ow many other affirmative defenses might warrant similar treatment.\u201d[172]<\/a> Such a blas\u00e9 attitude toward fundamental criminal-law concepts \u201cleaves prosecutors, defense attorneys, and the lower courts in the dark.\u201d[173]<\/a><\/p>\n\n\n\n

* * *<\/p>\n\n\n\n

So, what are we to make of Justice Alito\u2019s 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<\/em>, inviting dubious collateral attacks as in Rehaif<\/em>, or confusing the status of statutory affirmative defenses as in Ruan<\/em>, Justice Alito is often one of the few voices on the Court calling out real-world consequences.<\/p>\n\n\n\n

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, \u201c[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\u2019t understand the situation?\u201d[174]<\/a> Dashing any air of pretension, he directs advocates to quantify the concrete effects of their preferred position, asking in Rehaif<\/em>, for example, \u201c[h]ow many people are now serving time in federal prison under the felon-in-possession statute?\u201d[175]<\/a> Or in Ruan<\/em>, asking whether the petitioner\u2019s interpretation of the CSA would require dismissal of \u201call the other indictments\u201d in every case the Department of Justice brought under the relevant provision.[176]<\/a> With such high practical stakes on the line, Justice Alito prefers to prioritize context over abstraction, and reality over theory.<\/p>\n\n\n\n

IV.           Conclusion<\/h2>\n\n\n\n

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 \u201cwinning.\u201d 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\u2019s 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\u2019s evident purpose in enacting the statute.<\/p>\n\n\n\n

It\u2019s hard to neatly define the Justice\u2019s 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\u2019s refusal to give in to the \u201ccavalier treatment of . . . important question[s]\u201d[177]<\/a> has secured his position as the Justice who steadfastly acknowledges real-world consequences and Congress\u2019s purpose in the criminal law. Often through his concurrences and dissents, Alito has served as the Court\u2019s criminal-law oracle, time and again accurately predicting how the Court\u2019s 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.<\/p>\n\n\n\n

<\/a>*<\/sup> 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 \u201ccategorical\u201d approach and Justice Alito\u2019s concerns about this doctrine\u2014Sarah Jeon \u201923, Caroline Lefever \u201924, and Valerie Silva Parra \u201923. I especially want to acknowledge and thank Joshua Altman \u201922 for his prodigious research and our many conversations about Justice Alito\u2019s jurisprudence.<\/p>\n\n\n\n

[1] See, e.g.<\/em>, U.S. Dep\u2019t of Justice, Just. Manual \u00a7 9-27.001 (2018) (\u201cThese principles of federal prosecution have been designed to assist in structuring the decision-making process of attorneys for the government . . . The intent is to assure regularity without regimentation, and to prevent unwarranted disparity without sacrificing necessary flexibility.\u201d); Code of Conduct for U.S. Judges Canon 2A (U.S. Courts 2019) (A judge must embody the values of \u201chonesty, integrity, impartiality, temperament, or fitness . . . A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.\u201d).<\/p>\n\n\n\n

[2]<\/a> Antonin Scalia, A Matter of Interpretation 13 (1997).<\/p>\n\n\n\n

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

[4]<\/a> Manuel v. City of Joliet, 580 U.S. 357, 385 (2017) (Alito, J., dissenting).<\/p>\n\n\n\n

[5]<\/a> Mathis v. United States, 579 U.S. 500, 538, 543 (2016) (Alito, J., dissenting).<\/p>\n\n\n\n

[6]<\/a> Armed Career Criminal Act of 1984, Pub. L. No. 98-473, 98 Stat. 2185, amended by<\/em> Career Criminals Amendment Act of 1986, Pub. L. 99-308, 100 Stat. 459 (codified as amended at 18 U.S.C. \u00a7 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.<\/em>, Johnson v. United States, 576 U.S. 591 (2015) (voiding ACCA\u2019s residual clause on Due Process grounds); Welch v. United States, 578 U.S. 120 (2016) (holding that Johnson <\/em>applies retroactively on federal collateral review under 26 U.S.C. \u00a7 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 \u201cviolent felony\u201d); Wooden v. United States, 142 S. Ct. 1063 (2022) (holding that a criminal defendant\u2019s ten prior burglary offenses\u2014all of which arose from a single criminal episode\u2014did not constitute distinct \u201coccasions\u201d and thus counted as a single prior conviction for ACCA purposes).<\/p>\n\n\n\n

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.<\/em>, United States v. Davis, 139 S. Ct. 2319 (2019) (applying the categorical approach to 18 U.S.C. \u00a7 924(c)(3) (2018)); United States v. Taylor, 142 S. Ct. 2015, 2020\u201321 (2022) (applying the categorical approach to hold that attempted Hobbs Act robbery does not constitute a \u201ccrime of violence\u201d under \u00a7 924(c)(3)(A)\u2019s elements clause, which prohibits use of a firearm in connection with a \u201ccrime of violence\u201d); see also infra <\/em>notes 51\u201355, 80\u201384, discussing the categorical approach\u2019s application to substantive criminal offenses outside of the ACCA ambit in Davis <\/em>and Taylor<\/em>).<\/p>\n\n\n\n

The categorical approach is also central to immigration law, where courts determine whether an immigrant\u2019s prior convictions may trigger removal. See, e.g.<\/em>, 8 U.S.C. \u00a7 1227(a)(2)(B)(i) (2018) (authorizing deportation of an alien \u201cconvicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance\u201d); id. <\/em>\u00a7 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\u2019s pedigree may stretch back as far as the early twentieth century in the immigration context despite the Supreme Court\u2019s more active use of this tool over the last thirty years. See<\/em> Mellouli v. Lynch, 575 U.S. 798, 805\u201306 (2015) (\u201cThe categorical approach \u2018has a long pedigree in our Nation\u2019s immigration law.\u2019 As early as 1913, courts examining the federal immigration statute\u201d 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).).<\/p>\n\n\n\n

With immigration statutes incorporating provisions of the criminal code, the Court\u2019s 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.<\/em>, Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (striking the residual clause of 18 U.S.C. \u00a7 16(b) as unconstitutionally vague under the categorical approach in Johnson v. United States<\/em>, 576 U.S. 591 (2015)); see also infra <\/em>notes 46\u201355 and accompanying text (discussing the Johnson<\/em> line of cases concerning the constitutionality of various residual clauses).<\/p>\n\n\n\n

[7]<\/a> 18 U.S.C. \u00a7 924(a)(2) (2018).<\/p>\n\n\n\n

[8]<\/a> Id.<\/em> at \u00a7\u00a7 922(g)(1), 924(e)(1).<\/p>\n\n\n\n

[9]<\/a> Taylor v. United States, 495 U.S. 575 (1990).<\/p>\n\n\n\n

[10]<\/a> As discussed below, see infra <\/em>notes 24\u201327 and accompanying text, the \u201cmodified\u201d categorical approach permits a federal court to look both to the statute of conviction and a \u201climited list of judicial sources,\u201d referred to as Shepard<\/em> documents. U.S. Sent\u2019g Comm\u2019n, Primer on Categorical Approach 2 (2021), https:\/\/perma.cc\/BL47-X3EE; see<\/em> Shepard v. United States, 544 U.S. 13 (2005).<\/p>\n\n\n\n

[11]<\/a> U.S. Sent\u2019g Comm\u2019n, supra <\/em>note 10, at 1\u20132.<\/p>\n\n\n\n

[12]<\/a> See supra <\/em>notes 8\u201310 and accompanying text.<\/p>\n\n\n\n

[13]<\/a> H.R. Rep. No. 98-1073, at 1 (1984); see also <\/em>S. Rep. No. 98-225 (1983).<\/p>\n\n\n\n

[14]<\/a> H.R. Rep. No. 98-1073, at 1 (1984).<\/p>\n\n\n\n

[15]<\/a> 18 U.S.C. \u00a7 924(e) (2018).<\/p>\n\n\n\n

[16]<\/a> Id.<\/em> \u00a7 922(g).<\/p>\n\n\n\n

[17]<\/a> In \u00a7 924(e), Congress has provided broad categories of what constitutes a \u201cviolent felony,\u201d but it has provided few other details. A prior offense may constitute a violent felony if it falls within the elements clause of \u00a7 924(e)(2)(B)(i) (defining a violent felony to include an offense that \u201chas as an element the use, attempted use, or threatened use of physical force against the person of another\u201d) or within the enumerated-offenses clause of \u00a7 924(e)(2)(B)(ii) (defining a violent felony to include an offense that \u201cis burglary, arson, or extortion, involves use of explosives\u201d). In 2015, the Court held that the so-called \u201cresidual clause\u201d of ACCA is unconstitutionally vague. See<\/em> Johnson v. United States, 576 U.S. 591 (2015) (Scalia, J.) (holding 18 U.S.C. \u00a7 924(e)(2)(B)(ii) unconstitutional on the grounds of vagueness. That provision defined a \u201cviolent\u201d felony to include an offense that \u201cinvolves conduct that presents a serious potential risk of physical injury to another\u201d).<\/p>\n\n\n\n

[18]<\/a> 495 U.S. 575 (1990).<\/p>\n\n\n\n

[19]<\/a> Id.<\/em> at 578\u201379.<\/p>\n\n\n\n

[20]<\/a> Id.<\/em> at 600.<\/p>\n\n\n\n

[21]<\/a> Id.<\/em><\/p>\n\n\n\n

[22]<\/a> Id.<\/em> at 602.<\/p>\n\n\n\n

[23]<\/a> Id.<\/em> at 599\u2013600.<\/p>\n\n\n\n

[24]<\/a> Id.<\/em> at 601.<\/p>\n\n\n\n

[25]<\/a> The rule of Apprendi v. New Jersey<\/em>, 530 U.S. 466 (2000) (Scalia, J.), would not surface until ten years after the Supreme Court\u2019s 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<\/em>\u2019s requirements of jury fact-finding and proof beyond a reasonable doubt. See In re <\/em>Winship, <\/em>397 U.S. 358 (1970). Apprendi <\/em>held that \u201c[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.\u201d Apprendi<\/em>, 530 U.S. at <\/em>490. As Justice Alito and others have noted, the categorical approach\u2014as well as the modified categorical approach discussed below, see<\/em> infra <\/em>notes 24\u201327 and accompanying text\u2014is more akin to statutory interpretation than to the judicial fact-finding addressed in Apprendi<\/em>. To be sure, however, there is disagreement on this question. Compare <\/em>James v. United States, 550 U.S. 192, 213\u201314 (2007) (Alito, J.) (noting that the categorical approach is statutory interpretation and thus not subject to Apprendi<\/em>), and <\/em>Moncrieffe v. Holder, 569 U.S. 184, 198 (2013) (Sotomayor, J.) (\u201cBut those [Apprendi<\/em>] concerns do not apply in this context. Here we consider a \u2018generic\u2019 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.\u201d), with<\/em> James<\/em>, 550 U.S. at 231 (Thomas, J., dissenting) (dissenting on the ground that ACCA runs afoul of Apprendi<\/em> because its sentencing enhancements require judges to \u201cmake a finding that raises [a defendant\u2019s] sentence beyond the sentence that could have lawfully been imposed by reference to facts bound by the jury or admitted by the defendant.\u201d (citing United States v. Booker, 543 U.S. 220, 313 (2005) (Thomas, J., dissenting)).<\/p>\n\n\n\n

Justice Alito suggested in a recent case that the Apprendi<\/em>-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 <\/em>United States v. Taylor, 142 S. Ct. 2015, 2033 n.1 (2022) (Alito, J., dissenting) (first citing Michael McConnell, The <\/em>Booker Mess<\/em>, 83 Denver U. L. Rev. 665, 679 (2006)); then citing Jonathan Mitchell, Apprendi\u2019s<\/em> Domain<\/em>, 2006 Sup. Ct. Rev. 297, 298\u201399; then citing Rory K. Little & Teresa Chen, The Lost History of <\/em>Apprendi and the <\/em>Blakely Petition for Rehearing<\/em>, 17 Fed. Sent\u2019g Rep. 69, 69\u201370 (2004); and then citing Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas<\/em>, 110 Yale L.J. 1097, 1123\u201332 (2001)).<\/p>\n\n\n\n

Moreover, Apprendi<\/em> concerns do not underlie all categorical-approach cases. For example, in the context of \u00a7 924(c) substantive offenses, the jury, not a sentencing judge, will determine whether a defendant\u2019s conduct amounted to a \u201ccrime of violence\u201d in breach of \u00a7 924(c)\u2019s prohibition against use of a firearm in connection with a \u201ccrime of violence.\u201d See Taylor<\/em>, 142 S. Ct. at 2026\u201333 (2022) (Thomas, J., dissenting); id. <\/em>at 2033 n.1 (Alito, J. dissenting) (\u201c[N]o Sixth Amendment concern is implicated under \u00a7 924(c).\u201d).<\/p>\n\n\n\n

[26]<\/a> Taylor<\/em>, 495 U.S. at 590.<\/p>\n\n\n\n

[27]<\/a> Id.<\/em> at 589.<\/p>\n\n\n\n

[28]<\/a> Shepard<\/em>, 544 U.S. at 26.<\/p>\n\n\n\n

[29]<\/a> See <\/em>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 \u201cdivisible,\u201d meaning it contains several different offenses or alternative elements under which a conviction may be sustained. See <\/em>U.S. Sent\u2019g Comm\u2019n, supra<\/em> note 10, at 9\u201310. 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<\/em> documents as permitted under the modified categorical approach. Id.<\/em> at 3. However, if a statute of prior conviction is divisible (meaning Shepard<\/em> documents are fair game), the Court has indicated that the sentencing court should look to the \u201cleast of [the divisible] acts\u201d under the statute as the point of comparison to the federal statute. Johnson v. United States, 559 U.S. 133, 137 (2010).<\/p>\n\n\n\n

[30]<\/a> James<\/em>, 550 U.S. 192.<\/p>\n\n\n\n

[31]<\/a> 553 U.S. 377 (2008).<\/p>\n\n\n\n

[32]<\/a> James<\/em>, 550 U.S. at 207\u201308.<\/p>\n\n\n\n

[33]<\/a> Rodriquez<\/em>, 553 U.S. at 388.<\/p>\n\n\n\n

[34]<\/a> Id.<\/em> at 389.<\/p>\n\n\n\n

[35]<\/a> Id.<\/em><\/p>\n\n\n\n

[36]<\/a> 559 U.S. 133, 136\u201338 (2010).<\/p>\n\n\n\n

[37]<\/a> Id.<\/em> at 136.<\/p>\n\n\n\n

[38]<\/a> Id.<\/em> at 137.<\/p>\n\n\n\n

[39]<\/a> Id.<\/em> at 137.<\/p>\n\n\n\n

[40]<\/a> Id.<\/em> at 140.<\/p>\n\n\n\n

[41]<\/a> Id.<\/em> at 138\u201340.<\/p>\n\n\n\n

[42]<\/a> Id.<\/em> at 147\u201348 (Alito, J., joined by Thomas, J., dissenting).<\/p>\n\n\n\n

[43]<\/a> Id. <\/em>at 151.<\/p>\n\n\n\n

[44]<\/a> Id.<\/em> at 152.<\/p>\n\n\n\n

[45]<\/a> Id.<\/em> at 145 (majority opinion).<\/p>\n\n\n\n

[46]<\/a> Id.<\/em> at 152 (Alito, J., joined by Thomas, J., dissenting).<\/p>\n\n\n\n

[47]<\/a> 18 U.S.C. \u00a7\u00a7 921(a)(33)(A)(ii), 922(g)(9) (2018).<\/p>\n\n\n\n

[48]<\/a> 8 U.S.C. \u00a7 1227(a)(2)(E) (2018); 18 U.S.C. \u00a7 16(a) (2018).<\/p>\n\n\n\n

[49]<\/a> See, e.g.<\/em>, 18 U.S.C. \u00a7\u00a7 16(b), 924(c)(3)(B), 924(e)(2)(B)(ii) (2018); see also<\/em> supra <\/em>note 16 and accompanying text.<\/p>\n\n\n\n

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

[51]<\/a> 576 U.S. 591, 592 (2015).<\/p>\n\n\n\n

[52]<\/a> Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Kagan, J.) (concerning California first-degree burglary).<\/p>\n\n\n\n

[53]<\/a> Davis<\/em>, 139 S. Ct. 2319 (concerning the use of firearms in connection with a federal crime of violence).<\/p>\n\n\n\n

[54]<\/a> 18 U.S.C. \u00a7 924(c)(1)(A) (2018).<\/p>\n\n\n\n

[55]<\/a> Id.<\/em><\/p>\n\n\n\n

[56]<\/a> Davis<\/em>, 139 S. Ct. at 2354 (Kavanaugh, J., joined in part by Roberts, C.J., Thomas & Alito, JJ., dissenting).<\/p>\n\n\n\n

[57]<\/a> Id.<\/em> at 2353\u201354 (citing cases).<\/p>\n\n\n\n

[58]<\/a> Id.<\/em> at 2355.<\/p>\n\n\n\n

[59]<\/a> 136 S. Ct. 2243, 2266 (Alito, J., dissenting).<\/p>\n\n\n\n

[60]<\/a> Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito<\/em>, 87 Geo. Wash. L. Rev. 507, 513 (2019).<\/p>\n\n\n\n

[61]<\/a> Compare <\/em>18 U.S.C. \u00a7 924(e) (2018), with <\/em>Iowa Code \u00a7 702.12 (2013). See generally<\/em> supra <\/em>notes 24\u201327 and accompanying text.<\/p>\n\n\n\n

[62]<\/a> Mathis v. United States, 579 U.S. 500, 503 (2016) (Kagan, J.) (emphasis added); see also supra <\/em>note 27 and accompanying text. What\u2019s 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<\/em>, for example, the majority overlooked the fact that \u00a7 924(c)(3)(A)\u2019s definition of \u201ccrime of violence\u201d contains disjunctive elements, which would typically trigger the modified categorical approach. 142 S. Ct. 2015, 2033\u201337 (2022) (Alito, J., dissenting). In Taylor<\/em>, applying the approach of Shepard<\/em>, Justice Alito looked to Taylor\u2019s plea agreement, which admitted that Taylor \u201cand his accomplice intended to lure [the victim] into an alleyway, hold him at gunpoint, and take his money \u2018by force\u2019 in the event that he resisted.\u201d Id.<\/em> at 2036. In the Justice\u2019s view, this should have been more than enough \u201cto show that Taylor\u2019s actual crime \u2018ha[d] as an element the . . . use of physical force against the person . . . of another\u201d under \u00a7 924(c)(3)(A). Id.<\/em><\/p>\n\n\n\n

Justice Alito\u2019s willingness to remind the Court of its own precedents recalls recent administrative-law cases where Justice Alito has noted the Court\u2019s failure to even mention Chevron<\/em> deference where such deference is likely owed to a federal agency\u2019s interpretation of a statute. See <\/em>Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Alito, J., dissenting) (\u201c[T]he Court\u2019s decision implicates the status of an important, frequently invoked, once celebrated, and now increasingly maligned precedent, namely, Chevron<\/em> . . . [but] the Court, for whatever reason, is simply ignoring Chevron<\/em>.\u201d (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<\/em> overruling of Chevron <\/em>in West Virginia v. EPA <\/em>(this time with Justice Alito joining in Justice Gorsuch\u2019s concurrence). 142 S. Ct. 2587 (2022). In this case, the Court refused to defer to the EPA\u2019s interpretation of the Clean Air Act as permitting the promulgation of carbon-emission caps based on a generation-shifting approach. Id.<\/em> 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 \u201cmajor question\u201d of \u201ceconomic and political significance\u201d best left for congressional resolution absent an unambiguous delegation to an agency. Id<\/em>. at 2605 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Justice Alito joined Justice Gorsuch\u2019s concurrence, which made no mention of Chevron <\/em>but supplied further support for the majority\u2019s use of the major-questions doctrine. In her dissent, Justice Kagan critiqued the majority for failing to follow the Court\u2019s Chevron<\/em> precedent, specifically \u201cstep one\u201d of the Chevron <\/em>framework where courts are meant to apply the \u201cnormal principles of statutory interpretation\u201d before reaching substantive canons of interpretation, such as the major-questions doctrine. See id.<\/em> at 2635 (Kagan, J., dissenting).<\/p>\n\n\n\n

[63]<\/a> Mathis<\/em>, 579 U.S. at 503\u201305.<\/p>\n\n\n\n

[64]<\/a> In addition to the dissenting Justice Alito, Justice Breyer, joined by Justice Ginsburg, also rejected the \u201cmeans\/elements distinction\u201d in a separate dissent. See<\/em> id<\/em>. at 523 (Breyer, J., joined by Ginsburg, J., dissenting).<\/p>\n\n\n\n

[65]<\/a> Id.<\/em> at 501 (majority opinion) (quoting Richardson v. United States, 526 U.S. 813, 817 (1999)).<\/p>\n\n\n\n

[66]<\/a> Id.<\/em> at 510\u2013513.<\/p>\n\n\n\n

[67]<\/a> Id.<\/em> at 536\u2013537 (Alito, J., dissenting).<\/p>\n\n\n\n

[68]<\/a> Id.<\/em> at 538.<\/p>\n\n\n\n

[69]<\/a> Id.<\/em><\/p>\n\n\n\n

[70]<\/a> Id.<\/em> n.2 (citing Descamps v. United States, 570 U.S. 254 (2013)).<\/p>\n\n\n\n

[71]<\/a> Id.<\/em> (citing Moncrieffe v. Holder, 569 U.S. 184 (2013)).<\/p>\n\n\n\n

[72]<\/a> 575 U.S. 798, 813\u201314 (2015) (Thomas, J., joined by Alito, J., dissenting).<\/p>\n\n\n\n

[73]<\/a> Id. <\/em>at 808\u201313 (majority opinion).<\/p>\n\n\n\n

[74]<\/a> United States v. Taylor,<\/em> 142 S. Ct. 2015, 2033 (2022) (Alito, J., dissenting).<\/p>\n\n\n\n

[75]<\/a> Mathis<\/em>, 579 U.S. at 538 (Alito, J., dissenting).<\/em><\/p>\n\n\n\n

[76]<\/a> Id.<\/em> at 540.<\/p>\n\n\n\n

[77]<\/a> Id.<\/em> at 539; see also<\/em> Taylor<\/em>, 142 S. Ct. at 2035 (Alito, J., dissenting) (\u201cThe whole point of the categorical approach that the Court dutifully follows is that the real world must be scrupulously disregarded.\u201d).<\/p>\n\n\n\n

[78]<\/a> Id. <\/em>at 541.<\/p>\n\n\n\n

[79]<\/a> Descamps v. United States, 570 U.S. 254, 281 (2013) (Alito, J., dissenting) (\u201cI 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.\u201d).<\/p>\n\n\n\n

[80]<\/a> Mathis<\/em>, 579 U.S. at 543 (Alito, J., dissenting).<\/p>\n\n\n\n

[81]<\/a> Id.<\/em> at 543\u201344.<\/p>\n\n\n\n

[82]<\/a> See, e.g.<\/em>, Borden v. United States, 141 S. Ct. 1817, 1856 (2021) (Kavanaugh, J., joined by Roberts, C.J., Alito & Barrett, JJ., dissenting) (\u201cBecause courts use the categorical approach when applying ACCA\u2019s violent felony definition, the Court\u2019s decision today will thus exclude many intentional and knowing felony assaults from those States.\u201d); see also<\/em> United States v. Davis, 139 S. Ct. 2319, 2337 (2019) (Kavanaugh, J., joined in part by Roberts, C.J., Thomas & Alito, JJ., dissenting).<\/p>\n\n\n\n

[83]<\/a> United States v. Taylor,<\/em> 142 S. Ct. 2015, 2033 (2022) (Alito, J., dissenting).<\/p>\n\n\n\n

[84]<\/a> Transcript of Oral Argument at 5, 77, Taylor<\/em>, 142 S. Ct. 2015 (No. 20-1459).<\/p>\n\n\n\n

[85]<\/a> Id.<\/em> at 5.<\/p>\n\n\n\n

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

[87]<\/a> Id.<\/em> at 2028; cf. supra notes<\/em> 31\u201333 and accompanying text (outlining Justice Alito\u2019s endorsement of the conduct-based approach). Justice Thomas also recommends overruling the Court\u2019s residual-clause decisions, particularly United States v. Davis<\/em>, 139 S. Ct. 2319 (2019), and adopting a conduct-based approach to \u00a7 924(c)(3)(B)\u2019s residual clause that mitigates vagueness worries associated with the categorical approach. Taylor<\/em>, 142 S. Ct. at 2031\u201332 (Thomas, J., dissenting).<\/p>\n\n\n\n

[88]<\/a> United States v. Scott, 990 F.3d 94, 125\u201326 (2d Cir. 2021) (Park, J., concurring).<\/p>\n\n\n\n

[89]<\/a> Id. <\/em>at 126.<\/p>\n\n\n\n

[90]<\/a> Id.<\/em> at 126\u201327 (citing cases).<\/p>\n\n\n\n

[91]<\/a> This case was a follow-on to the Supreme Court\u2019s decision in United States v. Davis<\/em>, 139 S. Ct. 2319 (2019), which held the residual clause of 18 U.S.C. \u00a7 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.<\/p>\n\n\n\n

[92]<\/a> 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<\/em>\u2019s holding that the residual clause of 18 U.S.C. \u00a7 924(c)(3)(B) is unconstitutionally vague.<\/p>\n\n\n\n

[93]<\/a> Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir. 2018) (Pryor, J., concurring).<\/p>\n\n\n\n

[94]<\/a> Id.<\/em><\/p>\n\n\n\n

[95]<\/a> But see Davis<\/em>, 139 S. Ct. at 2354\u201355 (Kavanaugh, J., concurring) (\u201c[D]efendants who successfully challenge their \u00a7 924(c) convictions will not merely be resentenced. Rather, their \u00a7 924(c) convictions will be thrown out altogether.\u201d). Davis <\/em>as well as its follow-on, Taylor <\/em>are discussed supra<\/em> at notes 49\u201355 and accompanying text.<\/p>\n\n\n\n

[96]<\/a> Sanford H. Kadish, Stephen J. Schulhofer & Rachel E. Barkow, Criminal Law and Its Processes: Cases and Materials 258 (2017).<\/p>\n\n\n\n

[97]<\/a> 4 William Blackstone, Commentaries *20\u201321.<\/p>\n\n\n\n

[98]<\/a> 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.<\/em>, Model Penal Code \u00a7\u00a7 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, \u201cdispens[ing] with the conventional requirement for criminal conduct\u2014awareness 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\u201d); 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\u2019s 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).<\/p>\n\n\n\n

[99]<\/a> Model Penal Code \u00a7 2.02(1) (Am. L. Inst. 1986).<\/p>\n\n\n\n

[100]<\/a> Flores-Figueroa v. United States, 556 U.S. 646, 660 (2009) (Alito, J., concurring); see also<\/em> id<\/em>. at 659 (\u201cI write separately because I am concerned that the Court\u2019s opinion may be read by some as adopting an overly rigid rule of statutory construction.\u201d).<\/p>\n\n\n\n

[101]<\/a> Id.<\/em> at 661.<\/p>\n\n\n\n

[102]<\/a> 575 U.S. 723 (2015).<\/p>\n\n\n\n

[103]<\/a> 18 U.S.C. \u00a7 875(c) (2018).<\/p>\n\n\n\n

[104]<\/a> Elonis<\/em>, 575 U.S. at 726\u201327.<\/p>\n\n\n\n

[105]<\/a> Id.<\/em> at 728\u201329.<\/p>\n\n\n\n

[106]<\/a> Id.<\/em> (noting that after the court\u2019s grant of a \u201cthree-year protection-from-abuse order against Elonis,\u201d Elonis subsequently posted, making threatening reference to the order of protection and how he had \u201cenough explosives to take care of the State Police and the Sheriff’s Department\u201d).<\/p>\n\n\n\n

[107]<\/a> Elonis<\/em>, 575 U.S. at 732 (summarizing the court of appeals\u2019 holding that defendant can be found guilty if \u201ca reasonable person would view [his words] as a threat\u201d).<\/p>\n\n\n\n

[108]<\/a> See supra <\/em>note 95 and accompanying text.<\/p>\n\n\n\n

[109]<\/a> Elonis<\/em>, 575 U.S. at 738 (quoting Staples v. United States, 511 U.S. 600, 606\u201307 (1994)).<\/p>\n\n\n\n

[110]<\/a> Id.<\/em> (citing Rogers v. United States, 422 U.S. 35, 47 (1975) (Marshall, J., concurring)).<\/p>\n\n\n\n

[111]<\/a> Id.<\/em> at 734 (quoting Morissette v. United States, 342 U.S. 246, 250 (1952).<\/p>\n\n\n\n

[112]<\/a> Id. <\/em>at 740.<\/p>\n\n\n\n

[113]<\/a> Id.<\/em> at 741. (noting that \u00a7 875\u2019s mental state requirement would be \u201csatisfied if the defendant transmits a communication for the purpose <\/em>of issuing a threat, or with knowledge<\/em> that the communication will be viewed as a threat\u201d and declining to decide whether \u201crecklessness would [ ] be sufficient\u201d because that issue had not been briefed (emphasis added)).<\/p>\n\n\n\n

[114]<\/a> Id.<\/em> at 742. By avoiding a holding as to the mens rea required by \u00a7 875(c), the Court also avoided the question of whether the First Amendment implications of the statute require a high mens rea level.<\/p>\n\n\n\n

[115]<\/a> Id.<\/em>at 742 (Alito, J., concurring in part) (emphasis added).<\/p>\n\n\n\n

[116]<\/a> Id.<\/em><\/p>\n\n\n\n

[117]<\/a> Id.<\/em><\/p>\n\n\n\n

[118]<\/a> Id.<\/em> at 743.<\/p>\n\n\n\n

[119]<\/a> Id.<\/em> at 745 (citing Model Penal Code \u00a7 2.02(2)(d) (Am. L. Inst. 1986)).<\/p>\n\n\n\n

[120]<\/a> Id. <\/em>at 745.<\/p>\n\n\n\n

[121]<\/a> Transcript of Oral Argument at 43, Elonis<\/em>, 575 U.S. 723 (2015) (No. 13-983).<\/p>\n\n\n\n

[122]<\/a> Elonis<\/em>, 575 U.S. at 742.<\/p>\n\n\n\n

[123]<\/a> 18 U.S.C. \u00a7 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.<\/em> \u00a7 922(g)(1), (5)(A).<\/p>\n\n\n\n

[124]<\/a> 139 S. Ct. 2191, 2213 (2019) (Alito, J., dissenting)<\/p>\n\n\n\n

[125]<\/a> Id.<\/em> at 2194 (majority opinion).<\/p>\n\n\n\n

[126]<\/a> Id.<\/em><\/p>\n\n\n\n

[127]<\/a> 18 U.S.C. \u00a7 922(g) (2018).<\/p>\n\n\n\n

[128]<\/a> Id.<\/em> \u00a7 924(a)(2).<\/p>\n\n\n\n

[129]<\/a> Id.<\/em> \u00a7 922(g).<\/p>\n\n\n\n

[130]<\/a> Rehaif<\/em>, 139 S. Ct. at 2195 (noting that courts should presume that Congress intends to require mens rea regarding \u201ceach of the statutory elements that criminalize otherwise innocent conduct\u201d absent contrary indication (citing United States v. X-Citement Video, Inc. 513 U.S. 64, 72 (1994))).<\/p>\n\n\n\n

[131]<\/a> Id.<\/em> at 2196.<\/p>\n\n\n\n

[132]<\/a> See <\/em>26 U.S.C. \u00a7 2255(f) (2018) (providing a \u201c1-year period of limitation\u201d that runs from \u201cthe 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\u201d); Teague v. Lane, 489 U.S. 288, 307 (1989) (providing that a new rule \u201cshould be applied retroactively if it places \u2018certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe\u2019\u201d (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)).<\/p>\n\n\n\n

[133]<\/a> Rehaif<\/em>, 139 S. Ct. at 2201 (Alito, J., dissenting).<\/p>\n\n\n\n

[134]<\/a> Id<\/em>.<\/p>\n\n\n\n

[135]<\/a> Id<\/em>.<\/p>\n\n\n\n

[136]<\/a> Id<\/em>.<\/p>\n\n\n\n

[137]<\/a> Id<\/em>.<\/p>\n\n\n\n

[138]<\/a> Id<\/em>.<\/p>\n\n\n\n

[139]<\/a> Id<\/em>.<\/p>\n\n\n\n

[140]<\/a> Id.<\/em> at 2202.<\/p>\n\n\n\n

[141]<\/a> Id.<\/em> at 2204.<\/p>\n\n\n\n

[142]<\/a> Id<\/em>.<\/p>\n\n\n\n

[143]<\/a> Id<\/em>.<\/p>\n\n\n\n

[144]<\/a> Id<\/em>.<\/p>\n\n\n\n

[145]<\/a> Id.<\/em> at 2206 (emphasis omitted).<\/p>\n\n\n\n

[146]<\/a> Id. <\/em>at 2209.<\/p>\n\n\n\n

[147]<\/a> Id.<\/em> As Justice Alito noted, the requirement that the government prove other \u00a7 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.<\/em>, Old Chief v. United States, 519 U.S. 172 (1997).<\/p>\n\n\n\n

[148]<\/a> Id.<\/em>; see also <\/em>18 U.S.C. \u00a7 922(d)(5)(A) (2018).<\/p>\n\n\n\n

[149]<\/a> Id.<\/em><\/p>\n\n\n\n

[150]<\/a> Id.<\/em> at 2210.<\/p>\n\n\n\n

[151]<\/a> See supra<\/em> notes 47\u201354 and accompanying text.<\/p>\n\n\n\n

[152]<\/a> See supra <\/em>note 127 and accompanying text.<\/p>\n\n\n\n

[153]<\/a> Rehaif<\/em>, 139 S. Ct. at 2212\u201313 (Alito, J., dissenting).<\/p>\n\n\n\n

[154]<\/a> Id.<\/em> at 2213 (citing Mathis v. United States, 136 S. Ct. 2243, 2269\u201370 (2016) (Alito, J., dissenting)).<\/p>\n\n\n\n

[155]<\/a> Id.<\/em><\/p>\n\n\n\n

[156]<\/a> Quick Facts: Felon in Possession of a Firearm<\/em>, U.S. Sent\u2019g Comm\u2019n, https:\/\/perma.cc\/29F3-E6B3.<\/p>\n\n\n\n

[157]<\/a> 142 S. Ct. 2370, 2384 (Alito, J., concurring) (quoting Rehaif<\/em>, 139 S. Ct. at 2197).<\/p>\n\n\n\n

[158]<\/a> 21 U.S.C. \u00a7 841(a) (2018).<\/p>\n\n\n\n

[159]<\/a> Ruan<\/em>, 142 S. Ct. at 2375.<\/p>\n\n\n\n

[160]<\/a> The majority\u2019s four reasons included (1) the explicit inclusion of a mens rea term in \u00a7 841, (2) the importance of the \u201c[e]xcept as authorized\u201d element in \u201cdistinguishing morally blameworthy conduct from socially necessary conduct,\u201d (3) the \u201cserious nature of the crime and its penalties,\u201d and (4) the \u201cvague, highly general language of the regulation.\u201d Id. <\/em>at 2386 (Alito, J., concurring).<\/p>\n\n\n\n

[161]<\/a> Id. <\/em>at 2383.<\/p>\n\n\n\n

[162]<\/a> Id<\/em>.<\/p>\n\n\n\n

[163]<\/a> Id<\/em>.<\/p>\n\n\n\n

[164]<\/a> Id.<\/em> at 2384.<\/p>\n\n\n\n

[165]<\/a> Transcript of Oral Argument at 22, Ruan<\/em>, 142 S. Ct 2370 (No. 20-1410).<\/p>\n\n\n\n

[166]<\/a> Ruan<\/em>, 142 S. Ct at 2385 (Alito, J., concurring).<\/p>\n\n\n\n

[167]<\/a> Id. <\/em>(citing 21 U.S.C. \u00a7 885(a)(1) (2018)).<\/p>\n\n\n\n

[168]<\/a> Id<\/em>.<\/p>\n\n\n\n

[169]<\/a> Dixon v. United States, 548 U.S. 1, 13 (2006) (quoting McKelvey v. United States, 260 U.S. 353, 357 (1922)).<\/p>\n\n\n\n

[170]<\/a> Id.<\/em> at 9 (citing Smith v. United States, 568 U.S. 106, 112 (2013)).<\/p>\n\n\n\n

[171]<\/a> Ruan<\/em>, 142 S. Ct. at 2384 n.* (Alito, J., concurring).<\/p>\n\n\n\n

[172]<\/a> Id.<\/em> at 2383.<\/p>\n\n\n\n

[173]<\/a> Id.<\/em><\/p>\n\n\n\n

[174]<\/a> Transcript of Oral Argument at 60, Elonis v. United States, 575 U.S. 723 (2015) (No. 13-983).<\/p>\n\n\n\n

[175]<\/a> Transcript of Oral Argument at 59, Rehaif v. United States, 139 S. Ct. 2191 (No. 17-9560).<\/p>\n\n\n\n

[176]<\/a> Transcript of Oral Argument at 78, Ruan<\/em>, 142 S. Ct. 2370 (No. 20-1410).<\/p>\n\n\n\n

[177]<\/a> Ruan<\/em>, 142 S. Ct at 2383 (Alito, J., concurring).<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Alito on Criminal Law Kate Stith* I.               Introduction Justice Samuel A. Alito is a natural judge\u2014by temperament, character, disposition, and experience. What do I mean by a \u201cnatural judge\u201d? 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\u2019s entire career as a lawyer\u2014both within the U.S. […]<\/p>\n","protected":false},"author":135,"featured_media":457,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[72],"tags":[130,129,127],"class_list":["post-2726","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-per-curiam","tag-criminal-law","tag-jurisprudence","tag-justice-samuel-alito"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2012\/07\/HLS_JOPP_Logo.png","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-HY","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2726","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/135"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2726"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2726\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media\/457"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2726"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2726"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2726"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}