Let me offer something that may (?) be a bit (!) speculative (and which Jonathan Adler already hinted at elsewhere).

To start, I can’t help but look back at some of the statements made during oral argument about how Alabama set up this case. Consider Justice Alito:

Counsel, you have made a number of arguments. Some of them are quite far-reaching, and you’ve been questioned about some of those already in the argument today, but let me make sure I understand your–your basic argument, your least far-reaching argument.

Justice Barrett:

I think I’m struggling in the same way that some others have about narrowing down exactly what your argument is.

. . .

I had understood your argument, your primary argument, to be much narrower, and I want to make sure now that I’m understanding it because now I’m questioning exactly where you’re going.

. . .

Is that your central argument? Because you’ve been talking a lot about the farther-reaching arguments.

Justice Kagan:

So you think that there are circumstances–I mean, this is important to me because some of your arguments sweep extremely widely, maybe most of them . . . .

Justice Kavanaugh:

I interpreted your argument in the briefs similarly to Justice Kagan and Justice Alito, that you had a broad argument which struck me as asking us to rewrite Gingles in–in a variety of ways, and then a narrower argument focused on compactness, whether the new majority-minority district proposed here was reasonably compact.

Assume just for the sake of argument that we don’t rewrite Gingles . . . .

On the heels of that, how about this line from Justice Alito’s dissent in Allen v. Milligan: “The Court spends much of its opinion attacking what it takes to be the argument that Alabama has advanced in this litigation. I will not debate whether the Court’s characterization of that argument is entirely correct . . . .”

In retrospect, one wonders whether Alabama’s likelihood of success would have improved if it had focused on the narrowest argument with the cleanest rule. It’s not a surprise, of course, that it added the constitutionality of Section 2 at the end of its appellate brief, a claim that Justice Thomas has undoubtedly publicly embraced in the past and that attracted a lot of the most public media concern. But it was also the biggest claim to make in light of some precedent (more on that in another post).

Then again, Justice Kavanaugh goes out of his way to say that even Alabama’s narrowest argument is foreclosed by statutory stare decisis. But I wonder if maybe problems arose as the majority opinion was being written about how to frame the argument.

That’s where the point about whether Justice Thomas lost the majority comes in.

As it typically goes, the majority author of an opinion drafts and circulates it. A lead dissenting opinion typically responds to points raised by the majority, often seamlessly in the opinion, because it has the majority as a baseline to work from. And then the majority may then respond, often (but not always) in footnotes, to points raised by the dissent.

This is an entirely imperfect way of looking at it. But Justice Thomas’s opinion has some hallmarks that suggest he may have been assigned the majority and lost it.

Start with the October sitting assignments. There were eight cases. Typically, cases are equitably distributed among justices. Justice Thomas did not write a majority opinion. It’s possible, of course, the opinion was assigned to Chief Justice Roberts in the first place. But it’s also possible Justice Thomas had it and assigned it to himself. Very weak evidence, but possible.

Then there’s the footnotes Justice Thomas uses. Footnotes 2, 3, 9, 12, 13, 14, 15, and 17 all directly respond to points raised by the majority (or plurality) opinion. Part IV of the opinion is a brief set of responses to the majority, too.

This is a lot of direct responses to the majority, in footnotes and in a standalone part, if the dissent had the majority’s opinion in the first place and worked off of that when drafting the dissent.

Chief Justice Roberts also responds to the principal dissent in footnotes, but in more limited ways. Footnotes 3 and 4 respond to the last part of the opinion, Part IV (which, as I suggest, may well have been tacked on at the end). Footnote 6 responds to the dissent’s footnote 14–which is a response to a response. (To be fair, the opinion responds to Thomas elsewhere, too.)

The opinions, then, are structured in a way that suggests Justice Thomas’s opinion was supposed to be the majority and Chief Justice Roberts the dissent. Possibly, at least. But, that is obviously not how it came out.

And note that in the dissenting opinions, no one justice agrees fully with the rationale of any other justice. Justice Thomas’s opinion is joined in part by Justice Barrett and, in a different more limited part, Justice Alito. Justice Alito also wrote separately. Justice Gorsuch joined both Justice Thomas’s dissenting opinion and Justice Alito’s dissenting opinion, in full.

These opinions may have reflected the difficulty of Justice Thomas trying to cobble together a majority–coming out of the gate with a fairly strong view of the scope of Section 2 that neither Justices Barrett nor Alito joined. And the dissenting opinions, in a different way, I think, have some shades of the dissenting opinions in Vieth v. Jubelirer, the 2004 case on partisan gerrymandering. The dissenting opinions there fractured over what standard to use for partisan gerrymandering–in part, perhaps, as an effort to pull Justice Kennedy to join one of those views. Likewise, it is possible that the varying configurations of opinions, and Justice Alito peeling off from the bulk of Justice Thomas’s dissenting opinion, reflect efforts to secure Justice Kavanaugh’s vote.

Notably, for instance, Justice Alito did not join the part of Justice Thomas’s opinion on the constitutionality of Section 2 of the Voting Rights Act. Justice Alito’s opinion is a much narrower opinion–returning to his statements at oral argument–that would have construed the Court’s precedents after Gingles in a different way than the majority.

In any case, it’s admittedly speculative. It adds some intrigue to the opinion and how the justices got to where they are, because there are suggestions it’s not as clear cut as it may appear on first read.