Sam Alito is very, very tired
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Biskupic’s latest insider account is about Sam Alito (and Thomas, who assigned him the opinion in the equivalent of picking JD Vance as your vice presidential candidate because there’s no way you can lose anyway) blowing a majority coalition because he made it too obvious that he planned to go full TWITTER FILES in the social media “censorship” case:
The hardline approach Supreme Court Justice Samuel Alito takes usually gets him what he wants.
This year it backfired.
Behind the scenes, the conservative justice sought to put a thumb on the scale for states trying to restrict how social media companies filter content. His tactics could have led to a major change in how platforms operate.
CNN has learned, however, that Alito 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
It is rare that a justice tapped to write the majority opinion loses it in ensuing weeks, but sources tell CNN that it happened twice this year to Alito. He also lost the majority as he was writing the decision in the case of a Texas councilwoman who said she was arrested in retaliation for criticizing the city manager.
Alito has long given off an air of vexation, even as he is regularly in the majority with his conservative ideology. But the frustration of the 74-year-old justice has grown increasingly palpable in the courtroom. He has seldom faced this level of internal opposition.
Overall, Alito wrote the fewest leading opinions for the court this term, only four, while other justices close to his 18-year seniority had been assigned (and kept majorities for) seven opinions each.
[…]
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.
“A function qualifies for First Amendment protection only if it is inherently expressive,” Barrett wrote in a concurring statement, asserting that if platform employees create an algorithm that identifies and deletes information, the First Amendment protects that exercise of editorial judgment. That might not be the situation, Barrett said, for algorithms that automatically present content aimed at users’ preferences.
Kagan added a footnote to her majority opinion buttressing that point and reinforcing Barrett’s view. Kagan wrote that the court was not dealing “with feeds whose algorithms respond solely to how users act online – giving them the content they appear to want, without any regard to independent content standards.”
If that’s what it took to avoid a holding that Nazis have the inalienable right to any private platform of their choice whether users want to see the content or not, I’ll take it.
Alito being America’s sorest winner, you can imagine how little he likes even relatively rare losses, which also happened in a retaliatory arrest case:
When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.
But as he began writing, he went further than the other justices in his review of Gonzalez’s case. Alito and his colleagues realized he couldn’t “hold five,” as the expression goes, for a majority.
A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit’s reasoning, the Supreme Court said the 5th Circuit had applied an “overly cramped view” of the court’s precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.
The court’s narrow opinion did not suggest how Gonzalez would ultimately fare as she continued the lawsuit.
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.
On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito’s chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.
Justices sometimes skip one of these final days of the annual session, but usually there’s an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.
I guess “I am a huge pissbaby” does not sound like as good an excuse for skipping opinion days as “teaching a course for American Samoa Law School’s Rome summer program.”
There are some indications that Alito might quit if Trump wins:
Alito appeared weary of it all by that last day. At 74, he is the second oldest of the current nine, after 76-year-old Thomas. While Alito is still relatively young as far as justices go (most in recent years haven’t left the bench until their 80s), he has reflected in private about retirement.
If Republican Trump were to win Alito may be persuaded to step down. If he does, Trump could look to the 5th Circuit, where many of his most conservative appellate-bench choices from his first term sit, including Alito’s former clerk, Judge Oldham.
Which, of course, has a very dark downside, namely the Sandra Day O’Connor precedent:
One of the biggest reasons I think Alito will do everything in his power to see Trump get elected this November is that he WANTS to retire and he can't/won't under Harris.
He's got a personal stake in Trump's campaign, and it shows in his decisions. https://t.co/DQtBErHN99— Elie Mystal (@ElieNYC) July 31, 2024
In addition to needing to overcome the Electoral College bias, Harris also probably can’t have a win that comes down to one state.