Justice Alito’s extreme approach reportedly cost him court majorities

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Ever wonder how certain Supreme Court justices wind up writing the majority opinions in cases? After oral arguments, the justices discuss them and, if the chief justice is in the majority, he can assign the opinion to another justice or write it himself — as Chief Justice John Roberts did in the Donald Trump immunity case, for example. If the chief is in the minority, then it’s up to the senior justice in the majority. Against that backdrop, consider a new report that Justice Samuel Alito was assigned two cases this past term but couldn’t keep majorities together. That’s not unprecedented but, like Roberts’ reportedly aggressive handling of the immunity appeal, it can shed light on the opaque court as we review this past term and look toward the future. That new report from CNN, which hasn’t been confirmed by NBC News or MSNBC, states that Alito was assigned to write the opinion in a big social media case over red-state laws seeking to restrict platforms’ content moderation. CNN reported that Alito (who reportedly declined the outlet’s interview requests) “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.” Alito also reportedly lost the majority in a case about retaliation for criticizing government officials, which resulted in an unsigned opinion from the court. The justice’s unyielding views are well known, whether in his public statements, rulings or related refusal to recuse from cases. So it’s not difficult to believe he couldn’t keep a majority in a given case. And to be sure, while every case is important, he has led Republican-appointed majorities in big right-wing cases with wider impact, most notably his Dobbs opinion overturning Roe v. Wade in 2022. In some respects, then, the report is as illuminating when it comes to other justices like Barrett and Jackson, who have gone their own ways in various cases. Among other examples this past term, Barrett didn’t fully join Roberts’ immunity ruling in Trump v. United States, while Jackson joined his 6-3 majority opinion narrowing obstruction charges for Jan. 6 defendants and Barrett wrote the dissent in that case, Fischer v. United States, joined by Jackson’s two fellow Democratic appointees. So their votes — especially Barrett’s, holding more power in the relative middle of the court — are worth watching, even if they don’t move the needle in the biggest cases on the Republican supermajority court, which can afford a defector here and there while still achieving goals that align with the Republican Party (as in Dobbs, where Roberts didn’t agree to overturn Roe but five other GOP appointees, including Barrett, did). Turning back to Alito, the report also reveals that the aggrieved justice “has reflected in private about retirement.” Presumably, he wouldn’t do so voluntarily under a Democratic administration. The 74-year-old is the second oldest sitting justice after 76-year-old Clarence Thomas. This reinforces the reality that November’s election has potentially dramatic stakes for the court’s future. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.