Denying certiorari is the Supreme Court’s favorite past time. Sure, they get tons of petitions for a grant. Sure, everybody who loses wants that last bite of the apple to try to win, to get that wrong righted. No, the Supremes can’t take every case. But, well, they could take more than they do. A lot more.

But one thing that has become more common is opinions on denials of cert. In Hester v. United States (beginning at page 41 of the Order List), there is not only a dissent by Justice Gorsuch, joined by Justice Sotomayor, but a concurrence with the denial by Justice Alito. It’s oddly like a whole decision without any decision at all. One wonders that if the conflict so moved these three justices to write, why did the other six refuse to hear the case?

In the dissent, Justice Gorsuch surprised many who were firm in their ignorant certainty based upon the war of misinformation following his nomination and confirmation by expressing views that, for the second time, brought the empathetic Latina on board. The first time was viewed as an outlier, since woke pundits were certain Gorsuch was otherwise horrible. But a second “partnership”?

If you’re charged with a crime, the Sixth Amendment guarantees you the right to a jury trial. From this, it follows that the prosecutor must prove to a jury all of the facts legally necessary to support your term of incarceration. Apprendi v. New Jersey, 530 U. S. 466 (2000). Neither is this rule limited to prison time. If a court orders you to pay a fine to the government, a jury must also find all the facts necessary to justify that punishment too. Southern Union Co. v. United States, 567 U. S. 343 (2012).

When Congress decided to dump restitution into the mix with the Victim and Witness Protection Act of 1982, it left dangling the problem of who decides the facts upon which the amount of restitution, sometimes in the millions, was based. Calling it “restitution” didn’t simplify the task as some might guess, as if showing a receipt for the car repair would answer all questions. Evidentiary hearings would be needed. But who makes the findings upon which these millions of dollars would depend?

But what if instead the court orders you to pay restitution to victims? Must a jury find all the facts needed to justify a restitution order as well? That’s the question presented in this case. After the defendants pleaded guilty to certain financial crimes, the district court held a hearing to determine their victims’ losses. In the end and based on its own factual findings, the court ordered the defendants to pay $329,767 in restitution. The Ninth Circuit affirmed, agreeing with the government that the facts supporting a restitution order can be found by a judge rather than a jury.

This is a big question, and the Hester case teed it up as well as the Supremes could want. Yet, cert was denied, and Sam Alito was all for it.

The argument that the Sixth Amendment, as originally understood, requires a jury to find the facts supporting an order of restitution depends upon the proposition that the Sixth Amendment requires a jury to find the facts on which a sentence of imprisonment is based. That latter proposition is supported by decisions of this Court, see United States v. Booker, 543 U. S. 220, 230–232 (2005); Apprendi v. New Jersey, 530 U. S. 466, 478 (2000), but it represents a questionable interpretation of the original meaning of the Sixth Amendment, Gall v. United States, 552 U. S. 38, 64–66 (2007) (ALITO, J., dissenting). Unless the Court is willing to reconsider that interpretation, fidelity to original meaning counsels against further extension of these suspect precedents.

The dreaded originalism? Justice Alito’s beef isn’t so much with the question of whether restitution, in addition to the facts upon which a sentence of imprisonment, falls outside the original understanding of the Sixth Amendment’s promise of trial by jury. That, in his view, applied to guilt, not the consequences of guilt. Not sentence. Not fine. And certainly not restitution.

That the Supreme Court in Booker, Apprendi and Gall put the findings of fact upon which not merely guilt, but punishment, in the hands of the jury finds no support in the “original meaning” of the Sixth Amendment, per Alito. Not only is he antagonistic to Hester’s argument here, but want to reconsider these cases that have, to his mind, already extended the right to a jury finding facts beyond what the Sixth Amendment requires.

Missing from Justice Alito’s brief concurrence is the reality that Congress has, since the ratification of the Bill of Rights, stuck its nose into the judicial function of sentencing to micromanage the punishment, both carceral and fiscal, of the convicted. When the facts upon which punishment was determined shifted from those presented to the jury at trial, and upon which the jury convicted, to post-conviction calculations, charts, graphs, related conduct, acquitted conduct and, ta da, mandatory restitution for victims, Congress changed the calculus.

So who decides the “new” facts that comprise the post-conviction findings that were never on the table when the Sixth Amendment’s original meaning militated for its inclusion in the Bill of Rights? Well, we don’t know because the Supremes denied the petition for a writ of certiorari. The only thing we do know is that Justice Neil Gorsuch isn’t what many of you thought he was. And more to the point, we could have done worse.