The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Allen v. Milligan was the last case to be decided from the Supreme Court's October sitting. There were only eight cases argued in that sitting, so only eight justices wrote majority opinions. Justice Thomas, the senior-most justice after Chief Justice Roberts, was the one justice left out.
While Justice Thomas did not author a majority opinion from the October sitting, he authored more pages from that sitting than any other justice and it is not particularly close. Justice Thomas wrote three opinions that spanned 95 pages. The next most prolific justice, in terms of page count, was Justice Kagan, who wrote 62 pages, followed by Justice Alito who wrote 52 pages. The two newest justices—Barrett and Jackson –wrote the fewest pages from the October sitting, 13 and 23 respectively. The totals are indicated in the table below.
Justice Kavanaugh did not write nearly as many pages as Thomas, Kagan or Alito—only 38 pages—but he wrote the most separate opinions of any justice in cases from the October sitting. Indeed, he was the only justice to write an opinion in more than half of the cases.
There are several possible explanations for Justice Thomas not having a majority opinion from the October sitting, despite his seniority. One possibility is that he anticipates having a substantial assignment from the November sitting, which includes the two affirmative action cases. Another possibility is that he had the majority opinion in Allen v. Milligan and lost the majority to the Chief. The extent to which Thomas responds to the Chief's opinion in his dissent is consistent with the idea that there was lots of back-and-forth trying to convince wavering justices, as is the fact that Justice Thomas' opinion does not make much effort to accommodate the views of other justices (as shown by the fact that only one of the other dissenters joins the whole opinion).
Whatever the reason Justice Thomas did not have a majority from the October sitting, it has not resulted in less writing from Justice Thomas. Indeed, measured in terms of pages and separate writings, Justice Thomas is usually one of the more prolific justices on the Court, and there's no reason not to expect that pattern to hold this term.