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elements clause excludes reckless States, Barrett wrote the major-
conduct. One Justice thinks, consis- ity opinion; in dissent were the
tent with his previously stated view, chief justice, Thomas and Alito.
that the ‘use’ phrase alone accom- And in Torres v. Madrid, Rob-
plishes that result.” “The dissent also goes erts wrote the majority opinion
It can be a risky proposition for through a complicated while Thomas, Gorsuch and
any observer to try to game out Alito dissented. In April, Gor-
how or why a particular align- counting exercise about such wrote a majority opinion
ment occurred. Sometimes oral how different justices have that was joined by Thomas,
arguments offer clues, but it can divided in this and two Breyer, Sotomayor, Kagan and
be equally risky to predict on the other cases, apparently to Barrett.
basis of those arguments. show how unfair it is that Much is often made of
The senior justice in the ma- the dissent’s view has not “switched” votes by justices,
jority gets to assign a decision, prevailed here,” Kagan such as Roberts’s reported votes
and in the Borden decision, that wrote in a footnote in in the first Affordable Care Act
justice was Thomas. It might be response to Kavanaugh. challenge and the census case
assumed that Thomas assigned involving a citizenship question.
the opinion to Kagan. But per- But justices have changed votes
haps Thomas was in dissent at taken shortly after arguments as
one point and Breyer, senior they read colleagues’ draft opin-
justice in dissent, assigned the ions, and ideology is not always
dissent to Kagan. If Thomas subsequently con- outcome determinative.
cluded his position was closer to the dissenters, The court has 21 cases in which to issue opinions,
he could have joined them by concurring in the including a few potentially divisive cases that could
judgment and Kagan’s dissent became the plural- again produce unusual alignments. ■
ity opinion.
There have been at least five unusual combi- Marcia Coyle, based in Washington, covers the U.S.
nations of justices in decisions so far this term. Supreme Court. Contact her at [email protected].

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