Trafficking in Formalism Redux: The Scalian Version

Last week I pointed out the utter formalism of requiring--as apparently, the traffic courts in New York and elsewhere do--that the prosecution introduce proof of such self-evident propositions as that a stop sign is a red octagon with the word "STOP" on it. (Post here). Yesterday's Supreme Court decision in United States v. Resendiz-Ponce is a nice counter-example. There, the Supreme Court acknowledged the general rule that an indictment must set forth the overt acts that the defendant allegedly committed, but held that the word "attempt," standing alone, was sufficient to connote both that the defendant intended to commit the offense (here, entering the country illegally) and took a concrete step toward doing so.

But to vindicate my use of the term "formalism" to describe the contrary approach, the Supreme Court's formalist in chief, Justice Scalia, filed a solo dissent. Scalia's dissent cites substantial prior precedent regarding the requisites of a valid indictment for attempt offenses and other offenses, and unlike the magic words approach of the "you didn't say octagon" traffic court cases, the underlying rule in Resendiz-Ponce has some functional value: It puts the defendant on notice of the specific charge against which he must defend. But even that functional purpose is more theoretical than real, since it appears that even Scalia would allow that an indictment would satisfy him if it stated that the attempt consisted of something as vague as "physical crossing of the border." That would give the defendant slightly more notice than the general allegation of "attempted entry," but it is hard to see how the inclusion of these only slightly more specific words in the indictment would ever make a real difference in the conduct of a case.

Interestingly, Justice Thomas, who typically agrees with Justice Scalia's formalism, did not join him in this one, and indeed, Justice Thomas was the lone dissenter in another case decided yesterday, Medimmune, Inc. v. Genentech, Inc. There, the issue was whether a patent licensee can bring a declaratory judgment action for invalidity where the licensee has paid royalties. The Court said yes in an opinion by Justice Scalia. Justice Thomas, invoking the highly formal doctrine of Article III standing, dissented. A parting of the ways for the Court's 2 leading formalists?