Interim Stat Pack for October Term 2018

The Supreme Court’s 2018-2019 term is almost complete. Although less than two calendar weeks are left, a large portion of the court’s work is still unfinished. At this juncture, we have several intriguing stories, some unexpected results and much left unanswered. So far, the justices have resolved 45 of the term’s 69 argued cases. This leaves at least 24 decisions for the final two weeks, or about 35 percent of the court’s merits docket. Many of these are high-profile cases, including Department of Commerce v. New York, the census-citizenship-question case; American Legion v. American Humanist Association, which implicates the future of the establishment clause; the two cases examining political-gerrymandering practices, Lamone v. Benisek and Rucho v. Common Cause; and Kisor v. Wilkie, which may dictate future jurisprudence surrounding judicial deference to administrative agencies.

It is important to note that the statistics for the term so far are preliminary, and they will change over the next two weeks. With that in mind, at this point in the term the court has presented us with some novel insights in the post-Kennedy era. Although many expected the court’s new conservative majority to overpower the four more liberal justices, such has yet to be the case (although if Justice Ruth Bader Ginsburg’s words from a recent speech ring true, such divisions still might play an important role in the remainder of the court’s decisions for the term).

We have seen seven different majority compositions in 5-4 decisions so far. Out of the 11 5-4 decisions, only four were decided by a majority composed of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. By contrast, Ginsburg and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were in the majority in five of these decisions. The variation in the source of the deciding vote in these five decisions has also been interesting to note. Roberts, Thomas, Gorsuch and Kavanaugh have all provided the fifth vote, leaving Alito as the lone more conservative justice not to join such a voting composition.

Several aspects of this term so far accord with patterns we have seen in the past. For example, the court has decided half of its cases by a unanimous majority, which is par for the course for recent terms. In the past, the court has frequently overturned decisions in cases coming from the U.S. Court of Appeals for the 9th Circuit. This term is no exception. Not only has the court vacated or reversed 11 of the 13 decisions coming from the 9th Circuit so far, with one decision, The Dutra Group v. Batterton, still remaining, but this is the highest reversal rate for any circuit this term (84.62 percent) aside from circuits that have only had a single case decided by the justices. Last term the court reversed in 12 out of 14, or 86 percent, of the cases that came from the 9th Circuit.

Kavanaugh seems to be fitting in comfortably among the justices in his first term on the Supreme Court. Based on his 43 votes, he has the highest frequency in the majority of any of the justices, at 93 percent. Roberts is a close second at 90 percent. In what also might be surprising to those expecting a conservative powerhouse of a court with this new justice composition, the only two justices whose frequencies in the majority so far this term are under 80 percent are Thomas and Gorsuch.

Some of the high rates of inter-justice agreement that we saw in the earlier Interim Stat Pack have dipped a bit now that more cases have been decided. Roberts’ agreement rates with Sotomayor and Kagan are no longer at least in the high 90-percent range for all measures, nor are Kavanaugh’s agreement rates with Sotomayor, Kagan and Breyer still at such heights. Surprisingly though, Kavanaugh still has higher agreement rates with Breyer and Kagan than he does with his fellow Trump nominee Gorsuch.

With the 24 cases already granted for next term, we can expect the justices to jump into several highly contentious areas that may put an even greater spotlight on the court. Because these cases involve issues ranging from Title VII discrimination to Second Amendment rights, we will likely see heated debates and much speculation over how the court will rule. This term is still far from over, however, and we may end up talking about the Supreme Court’s October Term 2018 decisions for many years to come.

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