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Did Justice Alito Lose The Majority Opinion In Hamm v. Smith?

It seems possible that the Chief Justice assigned the majority to Justice Alito, but something happened along the way, and Justices Kavanaugh and Barrett decided to DIG.

Josh Blackman | 5.22.2026 1:46 AM

On Thursday, the Court DIG'd Hamm v. Smith, a messy death penalty case that has been going on for three decades. Several things are unusual about this ham-handed DIG. Indeed, it is possible that Justice Alito lost the majority opinion.

First, more than five months elapsed between oral argument in December and the DIG in May. This is an exceptionally long time for a DIG. Usually when a case presents vehicle problems, there are questions at oral argument about it. But I didn't see any clear signs at OA that a DIG might be in the cards. Moreover, these sorts of long-term DIGs usually are unanimous, or close to it, in which case there are no separate writings. But here, there was a lengthy concurrence from Justice Sotomayor, a dissent by Justice Thomas, and a dissent by Justice Alito, joined by three others.  My guess is that there was a majority to reverse at conference, but that majority fell apart.

Second, Justice Alito's dissent from the DIG was joined by Justice Thomas in whole, but Chief Justice Roberts and Justice Gorsuch did not join Part II. The Chief is almost never in dissent--especially in a case of this magnitude. It seems more likely to me that the Chief would have assigned this majority opinion to Justice Alito after the conference, and then when the majority fell apart, the Chief didn't jump ship. Perhaps Alito had already made changes to his opinion to assuage the Chief.

Third, in the December sitting, there were eight argued cases. So far, opinions have been authored in four of them by Justices Thomas, Kagan, Gorsuch,........

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