September 13, 2019

The Supreme Court in Review: Cases Affecting Business from the October 2018 Term

Many Supreme Court watchers saw the October 2017 term as foreshadowing a new, conservative Court with no true swing vote. During that term, Justice Kennedy voted with the conservative justices in all the most controversial cases, and the conservative Justices dominated the close 5-4 or 5-3 decisions.[1] With Justice Kavanaugh confirmed to replace Justice Kennedy, who was often the swing vote in such cases, the Court appeared to have five reliably conservative votes. As Lee Epstein, a political scientist at Washington University in St. Louis, predicted, “the 2017 term provides a good indication of what a post-Kennedy Court might look like. Many 5-4 decisions with the four Democratic appointees losing in the vast majority.”[2]

For the October 2018 term, at least, Dr. Epstein’s prediction missed the mark. While there were many 5-4 decisions, the Court’s liberal wing (Justices Ginsburg, Breyer, Sotomayor, and Kagan) were on the winning side of nearly half of the 5-4 decisions in which they voted together. The five conservative Justices (Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh) were still the most common alignment constituting a majority in 5-4 decisions, but those five voted together in only seven of the twenty such cases. And in a first since Chief Justice Roberts joined the Court in 2005, each of the five conservative Justices joined the Court’s four liberal Justices to form a majority at least once, with Chief Justice Roberts joining liberal majorities twice, and Justice Gorsuch four times.[3] Equally interesting, Justices Ginsburg and Breyer each voted in coalitions in which they were the sole liberal Justice in an otherwise conservative voting block (Ginsburg once, and Breyer twice).[4] In short, perhaps the most interesting thing about the October 2018 term was its unpredictability, particularly in the alignment of Justices in closely decided cases.

It would be rash to draw long-term predictions from a single, tumultuous Supreme Court term, but one thing seems clear: Although Chief Justice Roberts famously extols the virtues of unanimity and often seeks to build consensus, he presides over a deeply divided court. This term, those divisions manifested in ten different majority alignments in 5-4 cases, by far the greatest number since 2005.[5] Further, only 39 percent of cases decided this term were unanimous decisions in even the broadest sense, meaning all justices voted for the same judgment, even if some of them wrote separate, sometimes conflicting, opinions. This was effectively tied for the lowest number of unanimous decisions since 2008.[6]

While this term might not have produced as many unanimous opinions as Justice Roberts would like, the unique voting alignments in close cases does seem to vindicate his non-partisan view of the court. Last fall, in response to President Trump’s criticism of a decision by an “Obama judge,” Chief Justice Roberts stated, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have here is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”[7] This term backed that statement up, as the Justices were each willing to break free of their political characterization to reach what they viewed as the right outcome in a particular case. Unpredictability is not generally considered a virtue when it comes to Supreme Court decisions, but compared with the Court’s recent reputation for being predictably partisan, this term may be considered a welcome change.

Finally, of particular interest to those attending this ABA Business Law Section annual meeting, this term’s unpredictability held in business-related cases as well. Generally, the Roberts Court has been friendly to business interests. Since 2006, the Supreme Court has ruled in favor of the position advocated by the U.S. Chamber of Commerce in 70 percent of cases in which the Chamber filed amicus briefs. In the previous two terms, that number was even higher at 80 percent and 90 percent respectively.[8] Many were predicting that Justice Kavanaugh would solidify the Court’s pro-business leanings and move the court “from reliably pro-business to more resoundingly so.”[9] Again, the Court defied these expectations at least for one term, as the Court sided with the Chamber in only 57% of cases (12 out of 21). Justice Kavanaugh wrote two decisions siding with plaintiffs who alleged corporate wrongdoing. In the most high-profile of the two, Justice Kavanaugh joined the liberal justices in a 5-4 decision holding that plaintiffs had standing to bring an enormous antitrust class-action lawsuit against Apple Inc. alleging Apple monopolized the market for iPhone applications through its App Store.[10]


[1]              Adam Feldman, Final Stat Pack for October Term 2018, SCOTUSblog, at p.21 (June 28, 2019),


[3]              Adam Feldman, Empirical SCOTUS: Changes are afoot – 5-4 decisions during October Term 2018, SCOTUSblog (Jul. 8, 2019),

[4]              Adam Feldman, supra, Final Stat Pack for October Term 2018, at p.19

[5]              Feldman, supra, Changes are afoot.

[6]              Adam Feldman, supra, Final Stat Pack for October Term 2018, at p.17.


[8]              The Constitutional Accountability Center, a liberal think tank has kept track of this trend since at least 2010. See; see also; and


[10]             Apple Inc. v. Pepper, 139 S.Ct. 1514 (2019); see also Air and Liquid Systems Corp. v. DeVries, 139 S.Ct. 986 (2019).