Generally, the court tries to distribute majority opinions evenly. During 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 is unusual for a third-ranking justice to have such a narrow majority opinion. My guess is that Alito lost the majority opinion twice.
First, a few weeks ago I wrote that Justice Alito may have lost the majority opinion. Gonzalez vs. Trevino. The case was argued in the March conference. Alito did not give a majority opinion in that conference. All the other justices in that conference had at least one opinion. Sotomayor and Thomas each had two opinions! But Trevino It was issued as a per curiam opinion with Alito's concurrence. I observed that:
Why is this a per curiam opinion? Justice Alito was assigned the majority opinion, but lost it, and the Chief may have come in to rescue the majority opinion with a narrow per curiam. Alito currently has no assignments for the March session.
Second, Justice Alito also likely lost the majority opinion in both cases. Net Choice Cases. The cases were discussed at the February conference. Alito did not vote in the majority opinion at that conference. All other justices took at least one assignment, and Sotomayor took two. Here is the voting breakdown. Net Choice:
KbrotherJ. R delivered the following court opinion:openCJ and SIt doesn't work automaticallyKAbanosAnd BAretJJ., joined in full force, and JAcsonJ., Combined for Parts I, II and III–A. BAretJ. submitted a concurring opinion. JAcsonJ. partially agreed and submitted an opinion concurring with the judgment. THomasJ. submitted an opinion concurring with the judgment. ALitoJ. submitted an opinion concurring with the judgment.Homas And GOrsearchJJ., join.
My guess is that Justice Thomas assigned the majority opinion to Justice Alito. In the conference, Justices Barrett and Jackson agreed with the majority opinion. But Alito’s opinion tried to do too much. Justice Barrett was nervous about Alito’s opinion, and Justice Kagan accepted her opinion. Then Justice Jackson agreed with Kagan’s opinion enough to create a solid six-judge majority opinion. At that point, Justices Alito, Thomas, and Gorsuch agreed with the decision. And that 30-page concurring opinion looked like a majority opinion.
Of course, all this is speculation. But it would explain why Justice Alito only had four majority opinions. The story of this term is that Justice Barrett has moved from the conservative wing of the court to the welcoming arms of Justice Kagan. This move is more likely to happen than we know. This is one of those sports where we can guess what happens. Another story of this term is that the justices have no idea what to do about the challenges they face. Rahimi, eraseand Net Choice. I'll explain in more detail later.