Making Sense Of The Votes In Bittner v. United States
On Tuesday, the Supreme Court decided Bittner v. United States. The question presented was whether a “violation” under the Bank Secrecy Act is the failure to file an annual form (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported. The majority held that the penalty can only be assessed once per-report. The dissent held that the penalty can be assessed for each report. Justice Gorsuch wrote the majority opinion, which was joined in full by Justice Jackson. Justice Gorsuch wrote a section on the rule of lenity, which only Justice Jackson signed onto. Chief Justice Roberts and Justices Alito and Kavanaugh joined the rest of the majority opinion. Justice Barrett wrote the dissent, which was joined by Justices Thomas, Sotomayor, and Kagan. Jon Adler already pointed out the unusual split. Here, I’ll try to make sense of the votes.
As a threshold matter, the identity of the authoring Justices should not come as a surprise. Justice Gorsuch consistently reads federal statutes in a narrow way that inures to the benefit of defendants. His separate analysis about the rule of lenity, which only Justice Jackson joined, undergirds Gorsuch’s appr
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