Clarence Thomas Breaks With Supreme Court's 'Unnecessary' Comments

Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, DC. Thomas said it was "unnecessary" for the Supreme Court to opine about a pair of social media cases in a concurring opinion Monday.

Justice Clarence Thomas broke with the Supreme Court's "unnecessary" comments in a pair of cases related to state social media laws.

The court on Monday unanimously declined to settle major constitutional questions raised by laws in Texas and Florida that sought to limit how much social media platforms can regulate content, especially from conservative users.

In a concurring opinion, Thomas said he agreed with the court's decision to return the cases to lower courts, but that he felt it was "unnecessary" for his colleagues to be commenting on the constitutional arguments raised, which he said should be left to the other two branches of the federal government.

"I cannot agree, however, with the court's decision to opine on certain applications of those statutes. The court's discussion is unnecessary to its holding," Thomas wrote.

"Adjudicating facial challenges also intrudes upon powers reserved to the legislative and executive branches and the states. When a federal court decides an issue unnecessary for resolving a case or controversy, the judiciary assumes authority beyond what the Constitution granted," the conservative justice said.

"That necessarily alters the balance of powers: When one branch exceeds its vested power, it becomes stronger relative to the other branches."

A facial challenge involves a suit where the plaintiff argues the law is entirely unconstitutional, as opposed to an as-applied challenge, where the plaintiff argues that a particular application of that law is unconstitutional.

The laws at the center of the case, which aimed to protect conservative viewpoints from being censored by social media companies, were signed by Republican governors in 2021 after decisions from Facebook and X, formerly Twitter, to suspend former President Donald Trump's accounts in the wake of the January 6 Capitol riot.

Tech companies, represented by trade group NetChoice, asked the court to block the laws, arguing that they were unconstitutional and gave the government too much control over First Amendment speech published on privately-owned sites.

The Supreme Court ruled Monday that, "Neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms."

Although the decision was unanimous, five justices, including Justice Samuel Alito, wrote separate concurring opinions. Thomas wrote that he agreed with Alito's analysis, which found the court's approach "both unwarranted and mistaken" and joined his opinion in full, but said he wrote separately to add other observations he had on the merits of the case.

In his own concurring opinion, Alito said the court's "description of the Florida and Texas laws, as well as the litigation that shaped the question before us, leaves much to be desired."

"Given the incompleteness of this record, there is no need and no good reason to decide anything other than the facial unconstitutionality question actually before us," Alito wrote.

"The only binding holding in these decisions is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional. Because the majority opinion ventures far beyond the question we must decide, I concur only in the judgment," Alito said.

Justice Neil Gorsuch also joined Alito's concurring opinion.

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