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Why Ketanji Brown Jackson joined Neil Gorsuch in this unusual case

There were a bunch of weird pairings in the Bittner v. United States case about banking violations.


Tucked in between Justice Ketanji Brown Jackson’s first majority opinion and arguments over student debt relief on Tuesday, the Supreme Court released an opinion with one of the stranger lineups in recent memory.

The decision in a case about banking violations, Bittner v. United States, 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 it — Democratic-appointed Justices Sonia Sotomayor and Elena Kagan.

And to top it all off, Jackson not only joined Gorsuch’s opinion but did so fully — that is, more so than the Republican appointees in the majority.

There’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. So, good news for nonwillful violators with a bunch of accounts.

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.

Lenity is generally associated with criminal law, an area in which Jackson brings unique experience to the court as a former public defender. So her experience — specifically in representing people going up against the government — may explain why she was more dedicated to this part of the opinion than the other justices in the majority.