June 23, 2016

Alito's analogy.

In Mathis v. United States, just announced today, Alito begins his dissenting opinion like this:
Sabine Moreau lives in Solre-sur-Sambre, a town in Belgium located 38 miles south of Brussels. One day she set out in her car to pick up a friend at the Brussels train station, a trip that should have taken under an hour. She programmed her GPS and headed off. Although the GPS sent her south, not north, she apparently thought nothing of it. She dutifully stayed on the prescribed course. Nor was she deterred when she saw road signs in German for Cologne, Aachen, and Frankfurt. “I asked myself no questions,” she later recounted. “I kept my foot down.” [OMITTED: A footnote citing news coverage like this.]

Hours passed. After crossing through Germany, she entered Austria. Twice she stopped to refuel her car. She was involved in a minor traffic accident. When she tired,she pulled over and slept in her car. She crossed the Alps, drove through Slovenia, entered Croatia, and finally arrived in Zagreb—two days and 900 miles after leaving her home. Either she had not properly set her GPS or the device had malfunctioned. But Ms. Moreau apparently refused to entertain that thought until she arrived in the Croatian capital. Only then, she told reporters, did she realize that she had gone off course, and she called home, where the police were investigating her disappearance.

Twenty-six years ago, in Taylor v. United States, 495 U. S. 575, 602 (1990), this Court set out on a journey like Ms. Moreau’s. Our task in Taylor, like Ms. Moreau’s short trip to the train station, might not seem very difficult — determining when a conviction for burglary counts as a prior conviction for burglary under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)....

27 comments:

Kirby Olson said...

Great analogy!

eric said...

Brilliant.

MadisonMan said...

Are analogies good if you ask yourself "How could the person in this analogy be so ignorant"?

Ron Snyder said...

Sabine should have driven into the ocean and rid the world of her ignorance. Half the Supreme Court should do the same.

JCC said...

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. KENNEDY, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dis- senting opinion, in which GINSBURG, J., joined. ALITO, J., filed a dis- senting opinion.

What an odd breakdown.

What a stupid decision.

Rick said...

Has he always written like this or is he proposing himself as Scalia's replacement?

Birches said...

What an interesting voting block. As much as I like the analogy, I think Alito is wrong on the case. I'll have to read his whole dissent.

Ignorance is Bliss said...

MadisonMan said...

Are analogies good if you ask yourself "How could the person in this analogy be so ignorant"?

Yes, the analogy is good if it then leads you to ask the same of the court's majority.

robother said...

The insidious influence of international analogies in construing US law. Kennedy has infected even the conservative wing of the SCOTUS with a need to flaunt their familiarity with everything Continental. (There is a reason why the French tell Belgian jokes.)

HoodlumDoodlum said...

Women drivers, amIright?

buwaya said...

The analogy is false.
These things are never a matter of blind ignorance, but of interests.
Sabine may have been astoundingly foolish in real life, but in the analogous world her lack of judgement is simply the result of concentrated special interests overriding the will of a majority with a more diffuse interest, the theme of public choice economics. In Sabines case, perhaps the interests that prefer that she consume a lot of gasoline unnecessarily.

Birches said...

Oh, never mind, I thought the court overturned the 8th and Alito dissented. They held. His analogy is spot on.

WisRich said...

Alito's closing is pretty good to.

"Along the way from Taylor to the present case, there
have been signs that the Court was off course and opportunities
to alter its course. Now the Court has reached the
legal equivalent of Ms. Moreau’s Zagreb. But the Court,
unlike Ms. Moreau, is determined to stay the course and
continue on, traveling even further away from the intended
destination. Who knows when, if ever, the Court
will call home. "

john said...

It is an interesting block. The majority said the narrow view of government power should apply, and therefore reversed the lower court.

Breyer and Ginsburg, if I may be so bold, rarely take a narrow view of government power so they vote to dissent in this case much like they voted to affirm in Kelo.

Alito I think just wanted to hang the guy by whatever means.

coupe said...

If Mrs. Clinton were a GPS...

Never mind...

bagoh20 said...

I think it's a great analogy for a lot of how the law operates in the eyes of us laymen, and especially the regulations we live under. Although they start out with some semblance of reason, in practice they usually end up way off course or with exactly the opposite effect. I discuss regulatory issues with government inspectors and employees as part of my business, and it's amazing how often nobody can give a common sense justification for what we are doing or must do at risk of fines or jail. Often the only answer that can be given is: "I can't tell you why, but that's how they wrote the law, so this is what we have to do.", or "I just enforce what I'm told to." I'm really starting feel like a sucker, because I know a lot of businesses that do not follow the law or the rules, and they have an easier time of it. It's not in my nature to cheat, but when people's livelihoods are at stake, you can feel like you are letting them down by simply doing the right thing and following the law. Who deserves my consideration most: my employees and our families or some corrupt legislators and regulators taking care of theirs at our expense? This woman's foolishness my be humorous, but when the likes of her are running things, they do real damage to real people on a daily basis in enormous numbers.

mccullough said...

Back to first principles. What doe's possession of a gun have to do with Congress power to regulate interstate commerce. Is this really a necessary and proper law to make effective Congress power to regulate the interestate sale or shipment of guns.

The Lady who ended up in Zagreb is an apt metaphor for the Court's constitutional jurisprudence.

Fernandinande said...

Twenty-six years ago, in Taylor v. United States, 495 U. S. 575, 602 (1990), this Court set out on a journey like Ms. Moreau’s.

The government lawyers put the wrong address in an electronic gizmo, were too stupid to notice the mistake and ended up in Croatia. I believe it. Too bad they didn't remain there.

SukieTawdry said...

Well, I'll say this, it's one of the more interesting blocks we've had in a while.

Women drivers, amIright? LOL

Lucien said...

Proof that in writing dissents you can be as self indulgent as you want because: a) you are not trying to convince your peers of anything; and b)you want to do something noticeable. Great dissents will be noticed and may someday lead to a change in the Court's jurisprudence. Terrible and mediocre dissents won't -- so dare to be great.

Left Bank of the Charles said...

What's interesting about this case is that it could be overruled if either the Iowa legislature or Congress changed its statute. Moreover, any state that wanted to could render the Armed Career Criminal Act moot as to convictions in that state by adding an extra element to its burglary, arson, or extortion statutes.

Kagan pokes back at Alito in footnote 5:

"In another solo dissent, JUSTICE ALITO today switches gears, arguing not that our precedent is consistent with his means-based view, butinstead that all of our ACCA decisions are misguided because all followfrom an initial wrong turn in Taylor v. United States, 495 U. S. 575 (1990). ... To borrow the driving metaphor of his own dissent, JUSTICE ALITO thus locates himself entirely off the map of our caselaw. But that is not surprising; he has harshly criticized the categorical approach (and Apprendi too) for many years."

Mark Nielsen said...


The analogy would have been perfect for a dissent on the "should we continue on this Affirmative Action highway?" case.

cubanbob said...

Why is the Armed Career Criminal Act even needed? Presumably most of the people who would be subject to this were out on parole when they committed the crimes(s) that triggered this Act. Why not simply sentence the criminal to serve the balance of previous convictions consecutively followed by the current sentence? Of course if violent criminals weren't released prior to completion of sentence this would be less of a problem.

Zivatar said...

The imaginary plea-bargain colloquy at the end of Alito's dissent provokes belly laughs, and is thus more effective than his recitation about Mme. Moreau's odd trip to Zagreb.

Paul Snively said...

What, no "Island of Dr. Moreau" jokes?

EMD said...

The Wise-Ass Wop.

JCC said...

@ Left Bank -

The offenses enumerated are by no means the only violent crimes which trigger enhancements. it was only that particular phrase which was at issue in the case. Robbery, murder, rape, and more are all considered violent crimes which enhance.

Cubanbob -
"most of the people who would be subject to this were out on parole..."
Actually, not at all. For instance, it is not at all uncommon for 2nd degree murder offenders to serve sentences of single digit terms with no parole remaining on release. Burglary offenders may not get sent to prison until they have accumulated multiple convictions, and only then for terms of several years. This can vary wildly depending on state and even county, with urban areas being far more lenient and rural areas which do not experience as much crime, being more harsh. California, of course, is like another planet, as are a few of the more blue states, where almost everything is a non-criminal infraction similar to speeding.

Except, of course, for not believing in global warming, which will soon be a violent felony everywhere Democrats rule.