The Volokh Conspiracy
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Biskupic Part III Confirms What We Already Knew: Justice Alito Lost Majority Opinions in NetChoice and Trevino.
There is little here that can't be gleaned from the docket and the split opinions.
On July 1, the Court decided Moody v. NetChoice. Later that day, I speculated that Justice Alito was assigned, and lost, the majority opinion. I had no inside information. I do not have any leaks. Rather, I was able to track the Court's assignments in each sitting, observe that Alito was short an assignment, and realize that Alito's separate opinion read very much like a majority opinion. Indeed, Alito signaled as much with this fourth-wall-breaking jab:
For these reasons, I am therefore compelled to provide a more complete discussion of those matters than is customary in an opinion that concurs only in the judgment.
Two weeks earlier, I speculated that Justice Alito lost the majority opinion in Gonzales v. Trevino. The per curiam majority was unusual. I wrote:
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.
Again, I had no inside information. I only need to read and to count.
Now, Joan Biskupic's exclusive third installment confirms what we already knew: Justice Alito lost the majority opinions in NetChoice and Trevino.
Here is Biskupic's lede.
The hardline approach Supreme Court Justice Samuel Alito takes usually gets him what he wants.
This year it backfired.
Behind the scenes, the conservative justice sought to put a thumb on the scale for states trying to restrict how social media companies filter content. His tactics could have led to a major change in how platforms operate.
CNN has learned, however, that Alito went too far for two justices – Amy Coney Barrett and Ketanji Brown Jackson – who abandoned the precarious 5-4 majority and left Alito on the losing side.
As a result, the final 6-3 ruling led by Justice Elena Kagan backed the First Amendment rights of social media companies
It is rare that a justice tapped to write the majority opinion loses it in ensuing weeks, but sources tell CNN that it happened twice this year to Alito. He also lost the majority as he was writing the decision in the case of a Texas councilwoman who said she was arrested in retaliation for criticizing the city manager.
And to be clear that Alito was not a source, Biskupic includes this disclaimer:
Alito declined CNN requests for an interview.
At conference, it seems that Justices Barrett and Jackson were more amenable to Judge Oldham's analysis in the Fifth Circuit. Remember, Justice Jackson has signaled that she will be the most hostile member of the Court to free speech claims.
A few days later, as the justices met in private on the dispute, they all agreed that NetChoice's sweeping claims of unconstitutionality had fallen short and that the two cases should be sent back to the lower courts for further hearings.
The justices, however, split over which lower court largely had the better approach to the First Amendment and what guidance should be offered for lower courts' further proceedings.
Alito, while receptive to the 5th Circuit's opinion minimizing the companies' speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.
This is the key insight that Biskupic provides here: that Barrett and Jackson formed the majority at conference. I speculated as much, but Biskupic states it with some degree of confidence.
But Justice Kagan, the old-school liberal, favored a more robust conception of free speech:
On the other side was Kagan, leaning toward the 11th Circuit's approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.
If Biskupic's accounting is right, then Justice Thomas would have assigned the majority to Justice Alito:
Alito began writing the court's opinion for the dominant five-member bloc, and Kagan for the remaining four.
But then what happened? Surprise, surprise, Justice Barrett changed her mind. Or, if I had to speculate, she was never much settled on the issue in the first place. She was all over the map at oral argument. She had already stayed the Fifth Circuit's ruling a year earlier, so had been thinking about the case for some time. Yet, there was still no clarity. Justice Barrett, as I've written many times before, is figuring things out as she goes along. Law professors perhaps champion that virtue as one of open-mindedness and reasonableness. But the risk is that she can be unduly influenced. And Biskupic suggests it was Kagan who, once again, won Barrett over. As I presumed.
But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms' content-moderation could be considered "expressive" activity under the First Amendment.
Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.
Please remember that every word that Elena Kagan writes and utters in public is designed to curry Justice Barrett's vote. And we can only presume similar conversations occur behind the scenes. Never forget that. Going forward, no majority opinion with Barrett as the fifth vote is safe. Chief Justice Roberts for all of his warts in the past, has been a stalwart of late. If I was looking to hire a lateral professor to teach Federal Courts and Legislation, Professor Barrett would be on the short list. But for the Supreme Court? No way. Please don't let anyone blur this distinction.
Biskupic hints that once Barrett flipped, Jackson joined part of Kagan's majority to make the vote 6-3 rather than 5-4. It would have taken a stand for Justice Jackson to stay with Justice Alito. It was a free vote. But she wrote separately.
Jackson then joined much of Kagan's analysis as well, including that a private company's collection of third-party content for its platform could itself be expressive and therefore subject to First Amendment considerations when a state attempts to regulate.
Biskupic suggests that the votes were in flux till the very end of the term:
The give and take among the justices in the social media cases took until the very last day of the term.
One wonders if the Court had its last day in June, rather than July, would the bottom line have been different? Onto the next case.
Trevino was decided on June 21. Biskupic writes that the majority in that case fell apart a few weeks before:
A few weeks before then [NetChoice being decided on July 1], the separate majority Alito had tentatively won in the dispute over an alleged retaliatory arrest in Texas fell apart because of how extensively he wanted the court to rule.
At conference, the Court agreed to reverse the Fifth Circuit:
When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.
But Alito tried to go too far:
But as he began writing, he went further than the other justices in his review of Gonzalez's case. Alito and his colleagues realized he couldn't "hold five," as the expression goes, for a majority.
A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit's reasoning, the Supreme Court said the 5th Circuit had applied an "overly cramped view" of the court's precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.
Biskupic does not tell us the question I raised: who wrote the per curiam? Was it Roberts? Or Kagan? She refers obliquely to "a new majority."
Biskupic also hinted that Alito's absence from the handdown was related to this friction:
On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito's chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.
Justices sometimes skip one of these final days of the annual session, but usually there's an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.
Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.
I made a similar observation, querying why Chief Justice Roberts announced the per curiam opinion.
***
Like with her first and second installments, we don't learn much new, and we are left wanting to know what actually happened--something Biskupic does not know. Moreover, Justice Kavanaugh is entirely invisible in these stories. I think Team Kavanaugh has cut off Biskupic. She has nothing on him.
Yesterday I mused to myself that Part III would be about NetChoice. My prediction is Part IV will about Rahimi. Biskupic will tell us about how Justices Kavanaugh and Barrett split on the history-and-tradition test, and how Justice Gorsuch struggled with the as-applied issue. Plus there will be an aside on Vidal v. Elster. And Part V will be about Trump v. Anderson, and how Roberts cobbled together a majority. I hope there is some insight into the Barrett-Kagan dispute, which I still can't make heads-or-tails of. I don't have any inside information. Those were my observations from simply reading the opinion.
