Shortly after NetChoice was decided, I speculated that Justice Alito lost a majority opinion. Now, having had some time to stew on the case, I think my speculation is right, but the precise contours of the deliberations are complex.
Let's start with the easy part. All nine members of the Court agreed that both the Fifth and Eleventh Circuits failed to apply the proper standard for a facial challenge.
With the benefit of hindsight, this holding may seem obvious, but a lot of really smart people seemed to have missed the issue below. NetChoice was represented by Clement Murphy and Lehotsky Keller Cohn. This firm has some of the most gifted attorneys around. The panel opinions included Judges Andy Oldham and Kevin Newsom, two of the most brilliant lower court judges, who are total FedCourts nerds. Yet, despite all of this intellectual firepower, everyone apparently missed the boat.
