Typically, the Court aims to evenly distribute majority opinions among its members. This past term, four Justices had seven majority opinions each: Roberts, Thomas, Sotomayor, and Kagan. Three Justices had six majority opinions each: Gorsuch, Kavanaugh, and Barrett. Justice Jackson had five, while Justice Alito had only four.
It is uncommon for the third-most-senior Justice to have so few majority opinions. It is possible that Justice Alito may have lost two majority opinions.
Firstly, it was speculated a few weeks ago that Justice Alito may have lost the majority opinion in Gonzales v. Trevino. The case was argued during the March sitting, and Alito did not have any majority opinions from that session. Every other Justice from that sitting had at least one opinion, with Sotomayor and Thomas each having two. The decision in Trevino was released as a per curiam opinion with an Alito concurrence, leading to speculation:
Why was this a per curiam opinion? It is possible that Justice Alito was originally assigned the majority opinion but lost it, leading the Chief Justice to salvage the majority with a narrow per curiam. Currently, Alito has no assignments from the March sitting.
Secondly, Justice Alito may have also lost the majority opinion in the two NetChoice cases argued during the February sitting. Alito did not have any majority opinions from that session, while every other Justice had at least one assignment, with Sotomayor having two. The breakdown in NetChoice showed:
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.
It is speculated that Justice Thomas assigned the majority opinion to Justice Alito. However, Alito’s opinion may have been too expansive, causing unease among some Justices. Eventually, a majority formed around Justice Kagan’s opinion, with Justices Alito, Thomas, and Gorsuch left concurring in judgment, with Alito’s lengthy concurrence resembling a majority opinion.
While this is all speculation, it could explain why Justice Alito ended up with only four majority opinions this term. The term has also seen Justice Barrett aligning more with Justice Kagan than with the Court’s conservatives. Additionally, the Justices seem uncertain about handling facial challenges, as seen in cases like Rahimi, Trump, and NetChoice.
