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1/ Several people have suggested that the majority opinion flipped in Home Depot. @RMFifthCircuit @johnpelwood #SCOTUS
2/ Under this theory, the Chief originally assigned the opinion to J. Alito for a five-member majority. And one of the progressives wrote a draft dissent.
3/ If Thomas was persuaded by the draft dissent, then he likely would have joined that opinion, making it a majority opinion. But he didn't. Instead, J. Thomas wrote his own majority opinion, which the progressives gladly joined. The draft dissent was discarded.
4/ @AdamSFeldman points out this is the fourth time that J. Thomas joined the progressives in a 5-4 decision--and the first since J. Kennedy retired.
5/ When Walker v. Texas, Sons of Confederate Veterans was decided, I speculated that J. Alito lost the majority opinion, and J. Thomas flipped. However, in that case, he let J. Breyer's dissent become the majority joshblackman.com/blog/2015/07/1…
6/ J. Thomas remains impossible to typecast. Just as he likes it. And now as the senior associate Justice, he will wield this power effectively--and far for effectively than J. Stevens ever could. (JPS could only say "Tony or Sandy, whatever you want!)
