Justices Thomas and Alito — typically in agreement — split in major CFPB ruling

The Supreme Court’s decision this week upholding the funding structure of the Consumer Financial Protection Bureau surprised some court watchers since it pinned Justices Clarence Thomas and Samuel A. Alito Jr. against each other — with Justice Thomas writing the majority opinion and Justice Alito writing the dissent.

Both are viewed as the high court’s most conservative justices who are originalists. In the past, they’ve typically been aligned in most cases.

In the 2021 term, for example, the two were in agreement 73% of the time, according to SCOTUSBlog, which appears to have stopped tracking justices’ agreement data in recent years.

“I was surprised by the split between Thomas and Alito here. I think this may have to do with backroom conversations,” said Adam Feldman, Supreme Court scholar and creator of the EmpiricalSCOTUS blog.

Mr. Feldman said Chief Justice John G. Roberts Jr. could have seen that Justice Thomas would allow the CFPB to stand and had him author the opinion to give him more freedom to direct the case’s ultimate outcome.

The chief justice, when in the majority, assigns who writes the majority decision.

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“I’m not shocked by [Justice Neil M.] Gorsuch’s position in dissent as the dissent seems more grounded in ostensible originalism. I wasn’t surprised that Alito wanted to overhaul the CFPB because of its unique structure that in some sense seeps power from Congress. Thomas is the quirky vote and so I think the discretion he was given in opinion authorship was what motivated him to side with the majority,” Mr. Feldman said.

The reaction comes after the Supreme Court ruled Thursday that the funding structure for the Consumer Financial Protection Bureau is lawful, delivering a blow to conservatives who have sought for years to do away with the agency.

Congress, when it created the CFPB, allowed the agency to go straight to the Federal Reserve for funding rather than going through annual appropriations from Congress, as most other agencies do.

Critics argued that the structure ran afoul of the Constitution. But in a 7-2 decision on Thursday, the high court said it was permissible.

“Under the Appropriations Clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes. The statute that provides the Bureau’s funding meets these requirements. We therefore conclude that the Bureau’s funding mechanism does not violate the Appropriations Clause,” wrote Justice Thomas for the majority.

Justices Alito and Gorsuch dissented, noting that the CFPB could “bankroll” its own agenda without oversight from Congress.

“In short, there is apparently nothing wrong with a law that empowers the Executive to draw as much money as it wants from any identified source for any permissible purpose until the end of time. That is not what the Appropriations Clause was understood to mean when it was adopted,” the dissent read.

Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said he thought the outcome of the case was disappointing but he was not surprised by a split between Justices Thomas and Alito.

“All of the Republican-appointed justices are independent thinkers and disagree among themselves plenty,” he said. “Progressive criticism that Thomas, Alito, and others bend their interpretive methods to achieve personal policy goals is just projection.”