Another 5-4 decision, but not another left-right split

April 23, 2014

Today the U.S. Supreme Court decided Paroline v. United States, concerning the limits of restitution victims of child pornography may seek under 18 U.S.C. section 2259.  Splitting 5-4, the Court held that restitution is proper (indeed, mandatory) to the extent that the defendant’s own conduct was responsible for  harms to the victim.

Although the Court split 5-4, it did not split along usual left-right or formalist-pragmatist lines.  Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, Alito and Kagan. The Chief Justice dissents, joined by Justices Scalia and Thomas, and Justice Sotomayor dissents as well, albeit on quite different grounds.  The Chief argues against restitution in this case, while Justice Sotomayor argues the majority’s opinion it too limiting.

The decision is available here.

UPDATE: I should have noted that this case was argued by my co-blogger Paul Cassell.  He blogged about the case here and here, and has a short response here, with a longer response to follow.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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