The Volokh Conspiracy

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Did Justice Alito Lose The Majority Opinions In Trevino and NetChoice?

Alito had only four majority opinions this term, while Roberts, Thomas, Sotomayor, and Kagan all had seven.


Generally, the Court tries to evenly distribute majority opinions. This term, four members of the Court had seven majority opinions: Roberts, Thomas, Sotomayor, and Kagan. Three members had six majority opinions: Gorsuch, Kavanaugh, and Barrett. Justice Jackson had five. And Justice Alito had four.

It would be unusual for the third-most-senior Justice to have so few majority opinions. My speculation is that Alito lost two majority opinions.

First, a few weeks ago, I wrote that Justice Alito may have lost the majority opinion in Gonzales v. Trevino. That case was argued in the March sitting. Alito did not have any majority opinions from that sitting. Every other Justices from that sitting had at least one opinion–Sotomayor and Thomas each had two! But Trevino was released as a per curiam opinion, with an Alito concurrence. I observed:

Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the Chief came in to salvage the majority with a narrow per curiam. At present, Alito does not have any assignments from the March sitting.

Second, Justice Alito also may have lost the majority opinion in the two NetChoice cases. Those cases were argued in the February sitting. Alito did not have any majority opinions from that sitting. Every other Justice had at least one assignment–Sotomayor had two. Here is the vote breakdown in NetChoice:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in which JACKSON, J., joined as to Parts I, II and III–A. BARRETT, J., filed a concurring opinion. JACKSON, J., filed an opinion concurring in part and concurring in the judgment. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined.

My guess is that Justice Thomas assigned the majority opinion to Justice Alito. At conference, Justices Barrett and Jackson were with the majority. But Alito's opinion that tried to do too much. Justice Barrett became uneasy with the Alito opinion, and Justice Kagan accommodated her join. Then, Justice Jackson was able to join enough of the Kagan opinion to make it a solid, six-member majority. At that point, Justices Alito, Thomas, and Gorsuch were left concurring in judgment. And that 30-page concurrence sure looks a lot like a majority opinion.

All of this, of course, is speculation. But it would explain how Justice Alito had only four majority opinions. The story of this term has been Justice Barrett's moving away from the Court's conservatives and towards the welcoming arms of Justice Kagan. This movement probably happens more than we are aware–this is one spot where we can guess what happened. The other story of this term is that the Justices have absolutely no idea what to do with facial challenges–see RahimiTrump, and NetChoice. More on that later.