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Supreme Court on defenses

Prof. Orin Kerr has a post on the Supreme Court ruling yesterday in Dixon v. US. It involved a woman who violated GCA 68 and alleged duress as a defense: her boyfriend had threatened to kill her if she didn't. The ultimate question was who bears the burden of proof, and what is that burden.

Kerr points out an interesting theme underlying that question.... Congress just passes laws and, unlike most states, never bothers to have a statutory list of affirmative defenses, what is required for each, and who bears the burden. Most federal defenses thus are created by the courts, without statute, and the question is how should courts figure out what is a defense? The Court seems to have gone in several directions in Dixon.

Majority: Congress is assumed to act against a background of common law defenses. Problem here is to figure out how those were treated, as a generality, in 1968. (Rather like some aspects of originalism, he notes -- try to find an answer in intent, when those acting may never have spoken to, or perhaps not contemplated, the specific question).

Justice Kennedy: Congress is assumed to mean for the courts to recognize defenses, which may evolve over time. Hence question is not limited to the law as it stood in 1968.

Justice Alito: agrees. It is a strange fiction to assume that everytime Congress enacts a law, it reviews the body of caselaw on affirmative defenses as it then existed. Besides, this would mean that the burden of the same defense might shift around depending on whether the statute involved was enacted in 1940, in 1970, or in 2006.

Justice Breyer: rather like Kennedy, but tends to regard recognizing defenses as a matter of court policy, rather than an inquiry into how the law stands (i.e., what other courts have done).