Did Justice Alito Lose The Majority Opinions In Trevino and NetChoice?
Generally, the Court tries to evenly distribute majority opinions. 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 would be unusual for the third-most-senior Justice to have so few majority opinions. My speculation is that Alito lost two majority opinions.
First, a few weeks ago, I wrote that Justice Alito may have lost the majority opinion in Gonzales v. Trevino. That case was argued in the March sitting. Alito did not have any majority opinions from that sitting. Every other Justices from that sitting had at least one opinion–Sotomayor and Thomas each had two! But Trevino was released as a per curiam opinion, with an Alito concurrence. I observed:
Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the
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