A recent analysis by Reason sheds light on the opinions issued by the Supreme Court in the NetChoice case [afcc2068]. The case involved a facial challenge to certain laws, and all nine members of the Court agreed that the lower courts had failed to apply the proper standard for such a challenge. However, the opinions in the case did not cohere and were inconsistent [afcc2068].
Justice Kagan authored the majority opinion, which explained that the lower courts had not fully addressed the range of activities covered by the laws and had treated the cases more like as-applied claims rather than facial ones. Justices Thomas, Alito, and Gorsuch did not join the portions of Justice Kagan's opinion that concerned the facial challenge [afcc2068].
Justice Alito wrote a separate opinion concurring with the majority but considered Part III of Justice Kagan's opinion as nonbinding dicta. He also expressed concerns about the majority opinion going beyond the facial challenge and providing a preview for the lower courts, including the "common carrier" doctrine [afcc2068].
The analysis suggests that there was initially unanimous support among the justices for finding that the lower courts had erred in their facial analysis. Justice Alito was initially assigned the majority opinion but his draft went beyond the facial issue. Justices Barrett and Roberts likely had concerns with Alito's opinion, leading them to jump ship. As a result, Justice Kagan had to scramble to put together Part II of her opinion. The opinions ultimately did not cohere, and Justice Alito had to rewrite his majority opinion into a concurrence [afcc2068].
The lack of coherence and consistency in the Supreme Court opinions in the NetChoice case raises questions about the clarity and effectiveness of the Court's decision-making process. It also highlights the challenges of reaching a consensus among the justices on complex legal issues [afcc2068].