ALITO, J., dissenting
445, 475 (2015) (Scalia, J., concurring in part and dissenting in part).
The First Restatement has the more compelling position. There appear to be two principal objections to giving alternative grounds preclusive effect. The first is that the court rendering the judgment may not have given each of the grounds “the careful deliberation and analysis normally applied to essential issues.” Halpern, supra, at 105. This argument is based on an unjustified assessment of the way in which courts do their work. Even when a court bases its decision on multiple grounds, “it is reasonable to expect that such a finding is the product of careful judicial reasoning.” Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F. 3d 244, 254 (CA3 2006).
The other argument cited for the Second Restatement’s rule is that the losing party may decline to appeal if one of the two bases for a judgment is strong and the other is weak. §27, Comment i, at 259. There are reasons to be skeptical of this argument as well. While there may be cases in which the presence of multiple grounds causes the losing party to forgo an appeal, that is likely to be true in only a small subset of cases involving such judgments.
Moreover, other aspects of issue-preclusion doctrine protect against giving binding effect to decisions that result from unreliable litigation. Issue preclusion applies only to questions “actually and necessarily determined,” Montana, 440 U. S., at 153, and a party may be able to avoid preclusion by showing that it “did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.” Restatement (Second) of Judgments §28(5)(c). To be sure, this exception should not be applied “without a compelling showing of unfairness, nor should it be based simply on a conclusion that the first determination was patently erroneous.” Id., §28, Comment j, at 284. This exception provides an important safety valve, but it is narrow and clearly does not apply
