The Justice Behind the Dobbs Draft Opinion

Justice Alito, one of two Supreme Court nominees by President George W. Bush, has turned out to be one of the most certain conservative votes on the Court. Alito’s draft majority opinion of Dobbs v. Jackson was released by Politico last week shining a spotlight on the very real possibility that the Court will overturn the constitutional right to an abortion established in Roe v. Wade. But who is this Justice, confirmed to the Court by a vote margin of 58 to 42, that began his tenure on the Supreme court on the last day of January in 2006?

One way to understand Justice Alito’s behavior on the Court is through examining his authorship of majority opinions in cases decided by a single vote where no liberal justice sat in the majority. This has happened 30 times — one time in 2005, three times in 2006, one time in 2007 and in 2008, three times in 2009, two times in 2011, five times in 2012, two times in 2013, two times in 2014, one time in 2015, four times in 2017, one time in 2018, two times in 2019, and two times in 2020.

We can compare this to Justice Roberts’ track record in similar decisions. He was also confirmed in 2005 (a few months earlier than Alito) and authored 23 majority opinions with the same vote arrangement of conservative v. liberals. Here is a breakdown of Alito’s thirty decisions:

The case in 2005 was Arlington School District Board Of Education v. Murphy which held that winning cases under the educational Individuals with Disabilities Act did not authorize reimbursement of expert fees. 

In 2006 he authored the majority opinion in Hein v. Freedom from Religion Foundation which held that citizens do not have standing as taxpayers to bring Establishment Clause challenges against Executive Branch programs that are funded by appropriations for general administrative expenses.

In 2006 he also authored the Ledbetter v. Goodyear Tire decision which held that current effects alone cannot breathe life into prior, uncharged discrimination. For a timely claim, one would have needed to file within 180 days of a discriminatory decision.

The third 2006 decision was in National Association of Home Builders v. Defenders of Wildlife which upheld the Fish and Wildlife Service’s determination that the Endangered Species Act applies only to discretionary actions of federal agencies.

The case in 2007 was Davis v. FEC holding that the Millionaire’s Amendment to the 2002 campaign finance law contribution limits violated the First Amendment.

2008’s case was Horne v. Flores holding lower courts err in their analysis under Rule 60(b)(5) regarding Arizona’s position that changes in education law altered the foundations of prior court rulings which held that relief from such judgments was warranted.

In 2009 the first decision was in Stolt-Nielsen v. Animalfeeds, a precursor case to Alito’s decision in Janus, holding that imposing class arbitration on parties who have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act.

The second 2009 decision was in the case of McDonald v. Chicago holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.

The final 2009 decision, Perdue v. Kenny A., held the calculation of an attorney’s fee based on the lodestar method may be increased due to superior performance in extraordinary circumstances (specific evidence that the lodestar fee would not have been enough to attract competent counsel).

The first 2011 case was Christopher v. SmithKline Beecham holding that pharmaceutical sales representatives are “outside salesmen” under the Fair Labor Standards Act so that the Court did not have to defer to the Secretary of Labor’s interpretation of that statute.

In 2011’s FAA v. Cooper the Court held that the Privacy Act’s “actual damages” provision only allowed Cooper to recover for proven pecuniary or economic harm and not emotional distress (here the Social Security Administration shared his medical records showing he was HIV positive with the FAA).

One 2012 decision was Koontz v. St. Johns River Water Mgmt. Dist. holding the government may not conditionally approve land-use permits unless the conditions are connected to the land use and approximately proportional to the effects of the proposed land use.

The second 2012 decision was Clapper v. Amnesty Intl. Here the Court held that journalists and others did not have standing under Article III to challenge FISA monitoring procedures outside of the US because no injury occurred.

In 2012’s Vance v. Ball State the Court held for the purposes of liability for workplace harassment under Title VII, the definition of a “supervisor” is limited to a person empowered to take tangible employment action against the victim.

Next in 2012’s Salinas v. Texas the Fifth Amendment’s privilege against self-incrimination does not extend to defendants who decide to remain mute during questioning and that any witness who desires protection against self-incrimination must explicitly claim that protection.

Next in 2012 in Mutual Pharm. v. Barlett the Court held state law design-defect claims regarding a drug’s warnings (which are stronger than federal law guidelines) are pre-empted by federal law which prohibits generic drug manufacturers from independently changing FDA approved drug labels.

The next case was 2013’s Burwell v. Hobby Lobby holding Congress intended for RFRA to treat religious corporations as people since they are made of individuals who use them to achieve desired ends so that they do not need to provide contraceptive coverage under the ACA.

In 2014 the Court ruled in Glossip v. Gross that there was no evidence that the use of midazolam as the initial drug in an execution was much more likely to cause severe pain (as opposed to the accused’s argument that it would do so), compared to alternatives, violating the 8th Amendment.

Next in 2014 was Davis v. Ayala holding habeas petitioners are not entitled to relief unless they establish the alleged error resulted from “actual prejudice” and that the deferential Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) standard applies to a federal habeas petition to review the state court’s decision.

Alito’s 2015 opinion in a case decided by a single vote came in RJR Nabisco v. European Community This decision held provisions of RICO apply extraterritorially because the text clearly defined certain racketeering offenses as ones that can occur outside of the US if they affect commerce involving the US. This decision came down to a 4-3 vote due to Justice Sotomayor’s recusal and Scalia’s death.

In 2017’s Husted v. A. Philip Randolph Inst. the Court upheld an Ohio voting law that clears the state’s voter rolls of individuals who have died or relocated (those that don’t vote for four years and do not respond to letters confirming their registration) as not violating federal voting law.

2017’s Abbott v. Perez upheld the Texas legislature’s presumption of good faith and that the district court improperly reversed the burden of proof in requiring the state to show a lack of discriminatory intent in adopting a new districting plan.

In 2017’s Jennings v. Rodriguez the Court held US Code Sections 1225(b), 1226(a) and 1226(c) of Title 8 do not give detained aliens the right to periodic bond hearings during the course of their detention 

In the last 2017 Janus v. AFSCME the Court held Illinois’ extraction of agency fees from nonconsenting public-sector employees violated the First Amendment overturning the Court’s precedent in Abood v. Detroit Bd. of Education.

2018’s Nielsen v. Preap overturned a 9th Circuit decision holding that aliens deportable for specified crimes are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail.

In 2019’s Hernandez v. Mesa the Court held that the Bivens implied cause of action against federal government officials who have violated the plaintiff’s 4th Amendment does not extend to claims based on a cross-border shooting by a federal law enforcement officer.

Also in 2019, the Court in Kansas v. Garcia held the Immigration Reform and Control Act neither expressly nor impliedly preempts Kansas’s use of information provided on a federal Form I-9 in its application of state identity-theft and fraud statutes to the non-citizens.

In 2020 the Court in Johnson v. Guzman Chavez held that Section §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal which means DHS does not need to wait for the alien to seek or exhaust judicial review of that order before removal.

The other opinion in 2020 was in Brnovich v. DNC which held neither Arizona’s out-of-precinct policy nor H.B. 2023 violates Section 2 of the Voting Rights Act, and that H.B. 2023 was not enacted with a racially discriminatory purpose so that they do not impose burdens on voters that exceed the “usual burdens of voting,” and any racial disparity in burdens is “small in absolute terms.”

Now a comparative look at these decisions. Based on the US Supreme Court Database issue coding, the issues that came up in more than one of these cases include deportation, attorney fees, federal preemption of state legislation, Voting Rights Act of 1965, and governmental liability.

According to the Database’s more general issue coding seven cases dealt with civil rights, four with economic activity, four with criminal procedure, three with unions, two with judicial power, two with the First Amendment, two with federalism, two with attorneys, one with privacy, and one with due process.

Alito’s majority opinions decided by a single vote altered prior precedent twice – in Janus and McDonald. He also held laws unconstitutional four times in the 5-4 decisions with only conservative justices in the majority and where he was the majority author — in Davis v. FEC, Harris v. Quinn, Janus, and McDonald.

So far in the 2021 term Alito authored an 8-1 decision in Cameron v. EMW Women’s Surgical Center reversing a 6th Circuit decision denying the Kentucky attorney general’s motion to intervene on the commonwealth’s behalf in litigation concerning Kentucky House Bill 454 which regulates the abortion procedure known as dilation and evacuation.

He also authored a 9-0 opinion in FBI v. Fazaga which held Section 1806(f) of FISA — providing a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance under FISA — does not displace the state secrets privilege.

If we move the scope of this analysis out to view decisions made by a single vote where Alito was in the Court’s majority versus when he was in dissent the graph shows the following:

Alito participated in 225 cases decided by one vote through the 2020 term. He was in the majority more often than in dissent in12 terms, in dissent and the majority an equal number of times in three instances, and was in dissent more frequently than in the majority only in the Court’s last term — 2020.

If we break these cases down by the Supreme Court Database’s issue coding and look at all issues where Alito has voted in decisions by one vote that occurred in more than one case we find the following:

Based on this graph we see that Alito was in the majority more frequently than in dissent for six issues — death penalty, search and seizure, campaign finance, liability in civil rights act cases, natural resources, and cases dealing with judicial review of agency decisions; he was in dissent and majority an equal number of times in three of these areas — federal preemption of state laws or regulations, criminal sentencing, and standing cases; and was in dissent more often than in the majority in two case areas — habeas corpus and state jurisdiction in Indian law decisions.

Looking at the 5-4 decisions overturning precedent where Alito was in the majority, we find 11 decisions along with the two majority decisions where he authored majority opinions (in Janus and McDonald described above). These include:

  • Leegin Creative Leather v. PSKS — a 2006 antitrust decision.
  • Gonzales v. Carhart — a 2006 decision holding the 2003 Partial-Birth Abortion Ban Act constitutional.
  • Parents Involved in Community Schools v. Seattle — a 2006 decision holding that held that public school districts can’t use race as the sole determining factor for assigning students to schools, even if they are doing so to achieve racial diversity.
  • Montejo v. Louisiana — a 2008 case dealing with a defendant’s 6th Amendment rights.
  • Citizens United v. FEC –– a 2009 decision that held under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited.
  • South Dakota v. Wayfair — a 2017 holding that sellers who engage in a significant quantity of business within a state may be required to collect and remit taxes despite not having a physical presence in the state.
  • Trump v. Hawaii — a case decided in the 2017 term holding that an executive holder that suspended entry for 90 days of foreign nationals from seven countries identified by Congress or the Executive as presenting heightened terrorism-related risks does not violate the president’s statutory authority or the Establishment Clause.
  • Rucho v. Common Cause — a 2018 decision that held partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts.
  • Franchise Tax Board of CA v. Hyatt — a 2018 decision holding that Nevada v. Hall is overruled and that states retain their sovereign immunity from private suits brought in courts of other states.
  • Knick v. Township of Scott — the last of these cases from 2018 holding that the government violates the 5th Amendment’s takings clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under 42 U.S.C. §1983 at that time.

On the other side of the coin, Alito was in the majority with four liberal justices with the rest of his conservative colleagues in dissent only one time. This was in the Court’s 2019 Gundy v. United States decision. Alito concurred with the majority opinion here which held that the Sex Offender Registration and Notification Act (SORNA)’s delegation of authority to the U.S. Attorney General to issue regulations under 42 U.S.C. § 16913 does not violate the nondelegation doctrine. Alito’s vote of concurrence though was tempered in that he expressed he would like to revisit the Court’s approach to nondelegation but under the Court’s then present jurisprudence, he found no reason to invalidate SORNA’s delegation of authority in this provision.

If we move the scope out to cases decided by one vote where Alito was in the majority with three of the Court’s liberal justices we find in the first case he was in the majority with Stevens, Ginsburg, and Breyer along with Justice Kennedy in Zuni Public School District No. 89 v. Dept. of Education. This decision held that the Federal Impact Aid Program under 20 U.S.C. Section 7709 permits the Secretary of Education to identify the school districts that should be “disregard[ed]” by looking to the number of the district’s pupils as well as to the size of the district’s expenditures per pupil.

The same majority in Oregon v. Ice held that the Sixth Amendment does not prevent states from assigning to judges rather than to juries fact-finding responsibilities necessary to imposing consecutive sentences on criminal defendants.

Justice Alito sided with Justices Ginsburg, Sotomayor, and Breyer along with Justice Thomas in Dolan v. United States. This decision held that a court, which has missed the 90-day deadline still has the power to order restitution, at least under certain circumstances. 

After the 2010 term, Justice Alito was in the majority with three liberal justices only one time. This was in the 2014 decision Yates v. United States. That decision authored by Justice Ginsburg held that for the purposes of 18 U.S.C. § 1519, which imposes criminal liability on anyone who “knowingly . . . destroys . . . any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” a “tangible object” is one used to record or preserve information.

These decisions where Alito was in the majority along with three liberal justices appear relatively low stakes compared to Alito’s other decisions made by a single vote. This sheds additional light on the fact that not all Supreme Court cases decided by one vote are of equal importance. This set of cases, however, does show the Court’s business in its most contentious decisions and conveys instances where the justices tend to split along these lines. This also might help point both at how we might expect Alito to vote in such decisions in the future, and where the Court’s majority may lie on such contentious issues now that a 6-3 conservative majority sits at the helm of the Court with Roberts as the most likely vote to occasionally flip alongside the Court’s three more liberal justices.

Find Adam on Twitter @AdamSFeldman

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s