The Justice Behind The Dobbs Draft Opinion – Above the LawAbove the Law – Above the Law

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. Alitos draft majority opinion of Dobbs v. Jackson wasreleased by Politico last weekshining a spotlight on the very real possibility that the Court will overturn the constitutional right to an abortion established inRoe v. Wade.

But who is this Justice, confirmed to the Court by a vote margin of 58-42, that began his tenure on the Supreme Court on the last day of January in 2006?

One way to understand Justice Alitos 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 Alitos 30 decisions:

The case in 2005 wasArlington School District Board Of Education v. Murphywhich 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 inHein v. Freedom from Religion Foundationwhich 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 theLedbetter v. Goodyear Tiredecision 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 inNational Association of Home Builders v. Defenders of Wildlifewhich upheld the Fish and Wildlife Services determination that the Endangered Species Act applies only to discretionary actions of federal agencies.

The case in 2007 wasDavis v. FECholding that the Millionaires Amendment to the 2002 campaign finance law contribution limits violated the First Amendment.

2008s case wasHorne v. Floresholding lower courts err in their analysis under Rule 60(b)(5) regarding Arizonas 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 inStolt-Nielsen v. Animalfeeds, a precursor case to Alitos 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 ofMcDonald v. Chicagoholding 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 thecalculation of an attorneys fee based on the lodestar methodmay 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 wasChristopher v. SmithKline Beechamholding 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 Labors interpretation of that statute.

In 2011sFAA v. Cooper the Court held that the Privacy Acts 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 wasKoontz 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 wasClapper v. Amnesty Intl.Here the Court held that journalists and others did not have standing under Article III to challengeFISAmonitoring procedures outside of the US because no injury occurred.

In 2012sVance v. Ball Statethe 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 2012sSalinas v. Texas the Fifth Amendments 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.

Also in 2012 inMutual Pharm. v. Barlettthe Court held state law design-defect claims regarding a drugs 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 2013sBurwell v. Hobby Lobbyholding Congress intended forRFRAto 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 theACA.

In 2014 the Court ruled inGlossip v. Grossthat there was no evidence that the use ofmidazolamas the initial drug in an execution was much more likely to cause severe pain (as opposed to the accuseds argument that it would do so), compared to alternatives, violating the 8th Amendment.

Next in 2014 wasDavis v. Ayalaholding 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 courts decision.

Alitos 2015 opinion in a case decided by a single vote came inRJR 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 Sotomayors recusal and Scalias death.

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

2017sAbbott v. Perezupheld the Texas legislatures 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 2017sJennings v. Rodriguezthe Court held US Code Sections 1225(b), 1226(a) and 1226(c) ofTitle 8do not give detained aliens the right to periodic bond hearings during the course of their detention

In the last 2017Janus v. AFSCMEthe Court held Illinois extraction of agency fees from nonconsenting public-sector employees violated the First Amendment overturning the Courts precedent inAbood v. Detroit Bd. of Education.

2018sNielsen v. Preapoverturned a 9th Circuit decision holding that aliens deportable for specified crimes are not subject to8 U. S. C. 1226(c)(2)smandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail.

In 2019sHernandez v. Mesathe Court held that theBivensimplied cause of actionagainst federal government officials who have violated the plaintiffs 4th Amendment does not extend to claims based on a cross-border shooting by a federal law enforcement officer.

Also in 2019, the Court inKansas v. Garciaheld theImmigration Reform and Control Actneither expressly nor impliedly preempts Kansass 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 inJohnson v. Guzman Chavezheld 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 inBrnovich v. DNCwhich held neither Arizonas out-of-precinct policy norH.B. 2023violates 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 theUS Supreme Court Databaseissue 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 Databases more general issue coding nine 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.

Alitos 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 inCameron v. EMW Womens Surgical Centerreversing a 6th Circuit decision denying the Kentucky attorney generals motion to intervene on the commonwealths behalf in litigation concerningKentucky House Bill 454which regulates the abortion procedure known as dilation and evacuation.

He also authored a 9-0 opinion inFBI v. Fazagawhich 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 Courts 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 in 12 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 Courts last term 2020.

If we break these cases down by the Supreme Court Databases 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:

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 Courts 2019Gundy v. United Statesdecision. 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. Alitos vote of concurrence though was tempered in that he expressed he would like to revisit the Courts approach to nondelegation but under the Courts then present jurisprudence, he found no reason to invalidate SORNAs 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 Courts liberal justices we find in the first case he was in the majority with Stevens, Ginsburg, and Breyer along with Justice Kennedy inZuni Public School District No. 89 v. Dept. of Education. This decision held that the Federal Impact Aid Program under20 U.S.C. Section 7709permits the Secretary of Education to identify the school districts that should be disregard[ed] by looking to thenumber of the districts pupilsas well as to the size of the districts expenditures per pupil.

The same majority inOregon v. Ice heldthat 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 inDolan 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 decisionYates v. United States. That decision authored by Justice Ginsburg held that for the purposes of18 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 Alitos 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 Courts 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 Courts 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 Courts three more liberal justices.

Read more at Empirical SCOTUS

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam atadam@feldmannet.com.Find him on Twitter:@AdamSFeldman.

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The Justice Behind The Dobbs Draft Opinion - Above the LawAbove the Law - Above the Law