Strange, but true: Ketanji Brown Jackson joins Neil Gorsuch in an unusual Supreme Court opinion. (via Deadline: Legal Blog)
The decision in a case about banking violations,, was authored by Justice Neil Gorsuch. He was joined in part by a few fellow conservatives, Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh. Makes sense so far.
But what if I told you that Justice Amy Coney Barrett wrote the dissent and that she was joined by Justice Clarence Thomas? OK, they make sense together, but maybe not separate from the others. Also joining the dissent, though, were — wait for itAnd to top it all off, Jackson not only joined Gorsuch’s opinion but did soThere’s a lot to say about those unusual matchups, but for now I’ll shed some light on why I think Jackson fully joined Gorsuch.
To recap, the dispute dealt with a federal law requiring people to file annual reports with the government about their foreign bank accounts. The law carries a $10,000 civil penalty for “nonwillful violations.” The question was whether people who fail to file proper reports are liable for only a single $10,000 penalty or whether they’re on the hook for each account not properly recorded in the reports. The answer, per the majority, is liability per report, not per account.
Now, on to the part of Gorsuch’s opinion that only Jackson joined — and a theory about why. In that section of the opinion, Gorsuch, a Donald Trump appointee, invoked something called “lenity.” It’s an idea that “statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals," he explained.
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