Generally, courts try to divide majority opinions evenly. This term, four Supreme Court justices have held seven majority opinions: Roberts, Thomas, Sotomayor and Kagan. Three members hold six majorities: Gorsuch, Kavanaugh and Barrett. Judge Jackson had five. Justice Alito had four.
It is unusual for a third justice to have such a small majority opinion. My guess is that Alito lost both majorities.
First, a few weeks ago I wrote that Justice Alito may have lost the majority opinion Gonzalez v. Trevino. The case was debated at the March meeting. Alito did not win any majority at that meeting. All the other justices in the session had at least one opinion – Sotomayor and Thomas each had two! but Trevino Published as an opinion by Kuriam with permission of Alito. I observed:
Why is this a per curiam opinion? Justice Alito had the potential to win the majority opinion, but ultimately lost it, and the chief justice stepped in with a narrow view to save the majority opinion. Currently, Alito does not have any assignments for the March meeting.
Second, Justice Alito may also have lost the majority opinion in both cases Network selection case. The cases were argued at the February meeting. Alito did not win any majority at that meeting. Every other justice has at least one assignment — Sotomayor has two. Here is the voting breakdown Network selection:
KbrotherJ., delivered the opinion of the Court in which R.OpenCJ and Sit is not automaticKArnoldand BAretJJ., fully joins , where JExxon, J., added Parts I, II, and III-A. SecondAret, J., presented a unanimous opinion. JExxon, J., filed an opinion concurring in part and concurring with the judgment. timeHomas, J. made an opinion agreeing with the judgment. ALitoJ., made an opinion concurring with the judgment, in which THomas andGOrsageJJ, joined.
My guess is that Justice Thomas assigned the majority opinion to Justice Alito. At the conference, Justices Barrett and Jackson held the majority opinion. But Alito thought it was trying to do too much. Justice Barrett was troubled by Alito’s opinion, and Justice Kagan joined her. Justice Jackson then added enough of the Kagan opinion to make it a solid six-member majority. At this point, Justices Alito, Thomas and Gorsuch agreed to rule. The 30-page unanimous opinion certainly looks like a majority opinion.
Of course, all of this is just speculation. But that would explain why Justice Alito only had four majority opinions. The story of this term is Justice Barrett’s transition from the court’s conservative wing to the welcoming arms of Justice Kagan. This movement probably happens more than we realize – it’s a movement where we can guess what’s going on. Another story about this term is that judges have absolutely no idea how to deal with facial challenges – see Laxmi, trump cardand Network selection. More on that later.
