E.M.D. Sales, Inc. v. Carrera

Justice Gorsuch , with whom Justice Thomas joins, concurring.¶verify

Sometimes, the Constitution or Congress provides a particular standard of proof. See ante, at 50–51. If not, courts must find one. As in other contexts, they do so by examining the legal backdrop against which Congress has legislated. See, e . g ., Dixon v. United States , 548 U. S. 1, 17 (2006); cf. Astoria Fed. Sav. & Loan Assn. v. Solimino , 501 U. S. 104, 108 (1991) (“Congress is understood to legislate against a background of common-law adjudicatory principles”). In civil cases, those background legal principles typically require proof by a preponderance of the evidence. See ante, at 49–50. Occasionally, though, the default “common-law rule” provides instead for a “heightened standard of proof.” Microsoft Corp. v. i4i L. P. , 564 U. S. 91, 116 (2011) ( Thomas, J. , concurring in judgment). Either way, courts apply the default standard unless Congress alters it or the Constitution forbids it. See, e . g ., Octane Fitness, LLC v. ICON Health & Fitness, Inc. , 572 U. S. 545, 557–558 (2014). To do otherwise would be to “choose sides in a policy debate,” ante, at 53, rather than to declare the law as our judicial duty requires. Our decision today is consistent with this understanding, and I am pleased to join it.¶verify