Samuel Alito Was The Big Supreme Court Loser This Term

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Conservative causes undoubtedly had a good year in front of the Supreme Court. Whether it was giving January 6th rioters a free pass, ending Chevron deference (and with it a functional administrative state), criminalizing homelessness, or granting Donald Trump a once unimaginable amount of immunity, the Court served up a steady diet of bad times for anyone left of center this Term. But those broad strokes, while accurate, paper over some of the divides happening at the High Court.

CNN’s Joan Biskupic has more dirt on what happened behind the scenes at SCOTUS this Term. She reveals that in two separate cases controversial Justice Samuel Alito was assigned the majority opinion, but his drafts were so far afield that he lost his majority. While there’s an impulse to respond with glee at the thought of Alito losing support even among his fellow right wingers, it’s also a little terrifying to imagine how much worse it could have been.

The first case where Alito lost votes was the dispute over Texas and Florida’s laws limiting social media companies from content moderation. The initial 5-4 had both Amy Coney Barrett and Ketanji Brown Jackson voting with Alito, with Elena Kagan leading the opposition. But that didn’t last long.

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.

Barrett and Jackson each eventually wrote concurrences to Kagan’s majority opinion.

It was another First Amendment case where Alito had his majority yoinked away. In Gonzalez v. Trevino the eventual majority issued a surprisingly brutal — but brief — per curiam opinion, criticizing the Fifth Circuit for an “overly cramped view” of when a plaintiff may sue for retaliation for exercising their First Amendment right.

Alito instead wrote a concurrence:

Alito, in what became a concurring statement signed by him alone, agreed that the 5th Circuit had taken “an unduly narrow view,” but his opinion went further to detail Gonzalez’s actions and explore weaknesses in her varied arguments. Alito’s 16-page concurring opinion would have made it more difficult for Gonzalez to press her range of claims than the five-page opinion that garnered the new majority.

But perhaps what’s most interesting, is Biskupic’s sense of the beleagured justice’s mental state. She notes Alito appeared “preoccupied” and “weary” after losing these majority opinions. And that he “reflected in private about retirement.” Just think of all the weird flags the Alitos could fly if he left the Court.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].