October Term 2018
A Supreme Court Term Marked by Shifting
Alliances and Surprise Votes
Even as the court’s center of gravity shifted to the right, the court’s more liberal justices
held their own.
Adam Liptak and Alicia Parlapiano, The New York Times Online Edition, June 29,
2019.
WASHINGTON — The Supreme Court term that ended on Thursday was expected to be
a blood bath for its four-member liberal wing. Instead, shifting alliances produced a
series of surprising liberal victories. Some were minor, and some were tentative.
But in the end, the court’s liberals prevailed in fully half of the 14 rulings decided by 5to-4
votes in which they voted together.
Two decisions on the last day of the term — barring judicial review of claims of partisan
gerrymandering but blocking the Trump administration’s plan to add a question on
citizenship to the census — neatly captured this dynamic. But the trend went deeper,
and the court’s liberals had far more success than they did last term, when Justice
Anthony M. Kennedy was still on the court.
There were few blockbusters this term. In what appeared to be a studied effort to keep a
relatively low profile after Justice Brett M. Kavanaugh’s ferociously divisive
confirmation hearings and President Trump’s casual attacks on the federal judiciary, the
court tried to stay out of major controversies, denying review in abortionand gay rights
cases. It decided many cases narrowly, often in coalitions that scrambled expectations.
When it overruled precedents, it was in technical cases that attracted little attention.
“The court very much looks, and is acting, like a court in transition,” said Gregory G.
Garre, a lawyer at Latham & Watkins who served as solicitor general in the George W.
Bush administration. “The fault lines are still shifting on the court.”
The court is adjusting to the departure of Justice Kennedy, its longtime swing vote. His
replacement by Justice Kavanaugh was expected to shift the court’s center of gravity to
the right and thrust Chief Justice John G. Roberts Jr. into the court’s ideological center.
Both of those things happened.
What was unexpected was the crucial role Justice Kavanaugh has played in the balance
of power at the court. His voting was almost indistinguishable from that of the chief
justice, according to data compiled by Lee Epstein and Andrew D. Martin of Washington
University in St. Louis and Kevin Quinn of the University of Michigan.
Indeed, for now at least, it is possible to make the case that Justice Kavanaugh is the
new swing justice.
“It’s unusual for a new justice to be the median,” Professor Epstein said. The last time it
happened was in 1990, she said, when Justice David H. Souter joined the court.
Appointed by President George Bush, Justice Souter only briefly held the center spot
and soon drifted to the left.
Justice Kavanaugh was in the majority in divided decisions in argued cases 81 percent of
the time last term, more than any other member of the court. Chief Justice Roberts was
second, at 73 percent. Justice Elena Kagan, appointed by President Barack Obama, was
not far behind, at 71 percent.
Chief Justice Roberts and Justice Kavanaugh voted together 86 percent of the time in
divided cases, which tied for first place. By contrast, Justice Kavanaugh voted with
Justice Neil M. Gorsuch just 53 percent of the time, though both men were appointed by
Mr. Trump. That was barely ahead of the rate at which Justice Kavanaugh voted with
two Democratic appointees, Justices Kagan and Stephen G. Breyer.
“The Trump appointees are clearly not fungible,” Professor Epstein said. “At this point,
Justice Kavanaugh is more moderate.” But Professor Epstein cautioned that a justice’s
early votes can be deceptive, noting that the initial voting records of both Justices
Gorsuch and Clarence Thomas were more moderate than their later ones.
Mr. Garre said the two newest justices are a study in contrasts. “Both have shown
themselves to be confident and happy to go their own ways, even when it means joining
the more liberal justices,” he said. “But Justice Gorsuch is more frequently on the right
end of the court, and Justice Kavanaugh, so far at least, has gravitated more toward the
center.”
Even before the stormy end of the term, the court had not always succeeded in staying
out of the spotlight. In an extraordinary exchange in November, for instance, Chief
Justice Roberts tangled with Mr. Trump, who had criticized an asylum ruling by saying
it had been issued by an “Obama judge.”
The chief justice responded that “we do not have Obama judges or Trump judges, Bush
judges or Clinton judges” but only “an extraordinary group of dedicated judges doing
their level best to do equal right to those appearing before them.”
Richard J. Lazarus, a law professor at Harvard, said the court helped prove the chief
justice right with its unpredictable voting, singling out its three most junior members.
“Although the large number of closely divided votes was inconsistent with the chief
justice’s stated preference for unanimity, the shifting membership of those in the
majority and dissent was very much in keeping with the chief’s admonition that there
are not Bush, Obama or Trump judges and justices,” he said. “There was a striking
number of cases in which the votes of individual justices, especially Kagan, Gorsuch and
Kavanaugh, defied such ready political labels.”
The chief justice joined the court’s four liberal members — Justices Kagan, Breyer, Ruth
Bader Ginsburg and Sonia Sotomayor — to form a majority in 5-to-4 decisions just once,
in part of the census case. Justice Gorsuch voted with the liberal bloc in such cases four
times. Justices Kavanaugh and Thomas each voted with that bloc once.
“The justices also seemed happy to celebrate such voting behavior,” Professor Lazarus
said. “In many of those cases, the senior justice in the majority rewarded the justice who
defied expectations by assigning them the job of writing the opinion for the court,
including in big cases that a junior justice would otherwise be unlikely to get.”
For example, Justice Ginsburg assigned the majority opinion in a giant antitrust case
against Apple to Justice Kavanaugh, a plum assignment for a new member of the court.
The court overruled two precedents, on procedures in property rights cases and whether
states may be sued in the courts of other states. Dissenting from that second ruling,
Justice Breyer said he feared for the future. “Today’s decision can only cause one to
wonder which cases the court will overrule next,” he wrote.
But the term ended without any major shocks to the system, as the justices retained two
more significant precedents, one on double jeopardy, the other on deference to
administrative agencies.
Some of the court’s most significant work does not show up in calculations limited to
argued cases. The court also acted on an unusually large number of emergency
applications that illuminated tensions on the court. Twice, Chief Justice Roberts joined
the court’s four liberals in 5-to-4 votes in such cases, once to block a restrictive
Louisiana abortion law from going into effect and once to sustain a lower-court ruling
that blocked a Trump administration asylum policy.
Emergency applications in capital cases also laid bare divisions. Seemingly inconsistent
positions on whether death row inmates may have their spiritual advisers accompany
them into the death chamber exposed the court to criticism from across the ideological
spectrum and gave rise to testy and sometimes quite belated opinions in which the
justices tried to justify their votes.
There was a throat clearing aspect to the term that just ended, said Sarah Harrington, a
Supreme Court specialist at Goldstein & Russell. “The term seems to be mostly about
setting the stage for battles to come,” she said.
And there are indeed big cases on the horizon: on whether the Trump administration
can end a program shielding young, undocumented immigrants, on the Second
Amendment, on whether a federal law prohibits discrimination against gay and
transgender workers and very likely on abortion.
“This feels,” said Tara Leigh Grove, a law professor at William & Mary, “like a term on
the brink.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A
graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
Alicia Parlapiano is a graphics editor and reporter covering politics and policy from Washington.
She joined The Times in 2011 and previously worked at The Washington Post and the Pew
Research Center.
A version of this article appears in print on June 29, 2019, on Page A26 of the New York edition with the
headline: A Term Marked by Shifting Alliances and Surprise Votes
For this article with its graphics, see https://www.nytimes.com/2019/06/29/us/supreme-courtdecisions.html.
For Supreme Court justices’ votes in its biggest decisions for October Term 2018
https://www.nytimes.com/interactive/2019/06/21/us/supreme-court-key-cases-2019.html
5-4
DECIDED JUNE 27
Census
In Department of Commerce v. New York, the court sent back
to a lower court a case on whether the census should contain a
citizenship question, leaving in doubt whether the question
would be on the 2020 census.
The Supreme Court’s Biggest Decisions in 2019
By ADAM LIPTAK and JASON KAO UPDATED JUNE 27, 2019
The Supreme Court was transformed this term by the
departure of Justice Anthony M. Kennedy, its longtime swing
vote, and the arrival of his more conservative successor, Justice
Brett M. Kavanaugh. Here are some of the term's most
important cases, ones that will help chart the future of a court
in transition.
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LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts
5-4
DECIDED JUNE 27
Partisan Gerrymandering
In two cases, Rucho v. Common Cause and Lamone v. Benisek,
the court ruled that the Constitution does not bar extreme
partisan gerrymandering.
LIBERAL BLOC CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
6-3
DECIDED JUNE 24
First Amendment
In Iancu v. Brunetti, the court struck down a federal law
barring the registration of vulgar trademarks, saying it ran
Kavanaugh Alito Gorsuch Thomas
Sotomayor Ginsburg Kagan Breyer
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DECIDED JUNE 24
afoul of the First Amendment.
LIBERAL BLOC
Ginsburg Kagan
CONSERVATIVE BLOC
Kavanaugh Alito Gorsuch Thomas
7-2
DECIDED JUNE 21
Race Discrimination
In Flowers v. Mississippi, the court decided that a white
prosecutor violated the Constitution in excluding potential
black jurors at the sixth trial of Curtis Flowers, who is on death
row in Mississippi.
LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito
Sotomayor Breyer Roberts
Gorsuch Thomas
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7-2
DECIDED JUNE 20
Separation of Church and State
In American Legion v. American Humanist Association, the
court allowed a 40-foot cross honoring soldiers from World War
I to remain on government land.
LIBERAL BLOC
Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
7-2
DECIDED JUNE 17
Double Jeopardy
In Gamble v. United States, the court refused to overrule
precedents allowing two prosecutions for the same crimes, one
in federal court and one in state court.
LIBERAL BLOC
Sotomayor Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Thomas
Sotomayor Ginsburg
Ginsburg Gorsuch
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5-4
DECIDED MAY 13
Antitrust
In Apple v. Pepper, the court allowed an enormous antitrust
class action against Apple to move forward, saying consumers
should be allowed to try to prove that the technology giant had
used monopoly power to raise the prices of iPhone apps.
LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Kavanaugh
9-0
DECIDED FEB. 20
Civil Forfeiture
In Timbs v. Indiana, the court limited the ability of police to
seize private property used to commit crimes.
LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
Roberts Alito Gorsuch Thomas
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After 14 Years, Chief Justice Roberts
Takes Charge
I
Chief Justice John G. Roberts Jr. made his clout clear in a pair of stunning decisions on Thursday, providing
the decisive votes and writing the majority opinions in cases on the census and partisan gerrymandering.
Credit:Pool photo by Jabin Botsford
Adam Liptak, The New York Times Online Edition, June 27, 2019.
WASHINGTON — Chief Justice John G. Roberts Jr. has sat in the center seat on the
Supreme Court bench since his arrival in 2005. But only this term did he assume true
leadership of the court.
He made clear his influence in a pair of stunning decisions on Thursday, joining the
court’s liberal wing in one and his fellow conservatives in the other. In providing the
decisive votes and writing the majority opinions in cases on the census and partisan
gerrymandering, he demonstrated that he has unquestionably become the court’s
ideological fulcrum after the departure last year of Justice Anthony M. Kennedy.
The key parts of both decisions were decided by five-justice majorities, and the chief
justice was the only member of the court in both.
The two rulings, one a rebuke to the Trump administration and the other a boon to
Republicans, was consistent with Chief Justice Roberts’s insistence that politics should
play no role in judging. “We don’t work as Democrats or Republicans,” he said in 2016.
Conservatives expressed bitter frustration on Thursday about what they saw as the chief
justice’s unreliability, if not betrayal.
“Chief Justice John Roberts disappointed conservatives today — to a degree not seen
since he saved Obamacare in 2012 — when he sided with the court’s four liberals to
second-guess the Trump administration’s reasons for adding a citizenship question to
the census,” Curt Levey, the president of the Committee for Justice, a conservative
activist group, said in a statement. “The census decision will surely deepen the
impression that Roberts is the new Justice Kennedy, rather than the reliable fifth
conservative vote that liberals feared and conservatives hoped for.”
[The Supreme Court’s rulings on gerrymandering and the census have profound implications
for American politics. Here’s what the decisions mean.]
On the horizon next term are significant cases — on the Second Amendment, on
whether a federal law prohibits discrimination against gay and transgender workers and
very likely on abortion — that will help bring Chief Justice Roberts’s new role into
sharper focus. But he may not retain the decisive vote indefinitely.
The court’s two oldest members — Justice Ruth Bader Ginsburg, 86, and Justice
Stephen G. Breyer, 80 — are members of its liberal wing. If President Trump gets the
chance to replace one of them, the court would shift decisively to the right.
Mr. Roberts being sworn in as chief justice in 2005. Credit: Mark Wilson/Getty Images
The dissenting members of the court in both of Thursday’s cases all had the same
criticism — that the chief justice’s analysis was warped by politics.
In the census decision, which at least temporarily stopped the Trump administration
from adding a question on citizenship to the forms that will be sent to every household
next year, Justice Clarence Thomas suggested that the chief justice had been swayed by
the overheated emotions of the day.
“It is not difficult for political opponents of executive actions to generate controversy
with accusations of pretext, deceit and illicit motives,” Justice Thomas wrote.
“Significant policy decisions are regularly criticized as products of partisan influence,
interest group pressure, corruption and animus.”
Justice Thomas may have overstated things — he said judges inclined to distrust the
administration were working with a corkboard, a jar of pins and a spool of string to
“create an eye-catching conspiracy web” — but he was right that there was a whiff of
disdain in Chief Justice Roberts’s majority opinion.
The chief justice is mild, witty, controlled and precise, and he must have little patience
for Mr. Trump’s more freewheeling and slashing approach.
During his presidential campaign, Mr. Trump called Chief Justice Roberts “an absolute
disaster.” The chief justice did not return fire at the time.
But in an extraordinary exchange in November, he did tangle with Mr. Trump, who had
criticized an asylum ruling by saying it had been issued by an “Obama judge.”
The chief justice issued a statement: “We do not have Obama judges or Trump judges,
Bush judges or Clinton judges. What we have is an extraordinary group of dedicated
judges doing their level best to do equal right to those appearing before them.”
In the census decision, Chief Justice Roberts basically accused Wilbur Ross, the
secretary of commerce, of lying about why he wanted to add the citizenship question.
“The sole stated reason” for adding the question, the chief justice wrote, “seems to have
been contrived.”
That willingness to look behind an administration official’s asserted reason for taking an
action was at odds with last year’s decision upholding Mr. Trump’s travel ban.
In that case, writing for the court’s five conservatives, Chief Justice Roberts
acknowledged that Mr. Trump had made any number of statements concerning his
desire to impose a “Muslim ban.” He recounted the president’s call for a “total and
complete shutdown of Muslims entering the United States,” and he noted that the
president has said that “Islam hates us.”
But the chief justice declined to rely on what Mr. Trump had said.
“The issue before us is not whether to denounce the statements,” Chief Justice Roberts
wrote in 2018. “It is instead the significance of those statements in reviewing a
presidential directive, neutral on its face, addressing a matter within the core of
executive responsibility.”
Last year, Chief Justice Roberts was willing to ignore evidence of an ulterior motive.
This year, in the census case, the chief justice had had enough.
“Accepting contrived reasons would defeat the purpose of the enterprise,” he wrote. “If
judicial review is to be more than an empty ritual, it must demand something better
than the explanation offered for the action taken in this case.”
Chief Justice Roberts with Justices Elena Kagan and Neil M. Gorsuch at President Trump’s State of the Union
address in February.CreditDoug Mills/The New York Times
The chief justice stuck with his usual allies in Thursday’s second blockbuster, which said
judges cannot hear claims of partisan gerrymandering, the practice of drawing election
districts to help candidates of the political party in power.
It was the more consequential of the two decisions, and, as a practical matter in the
current electoral landscape, it will mostly help Republicans.
Dissenting in the gerrymandering case, the court’s liberals accused the chief justice of
refusing to acknowledge political realities.
“Of all times to abandon the court’s duty to declare the law, this was not the one,”
Justice Elena Kagan wrote in dissent. “The practices challenged in these cases imperil
our system of government. Part of the court’s role in that system is to defend its
foundations. None is more important than free and fair elections.”
The chief justice is often said to have conflicting impulses. He is a product of the
conservative legal movement, and his voting record reflects that. On issues of racial
discrimination, religion and campaign finance, his views are in the mainstream of
conservative legal thinking.
In major 5-to-4 decisions, he voted with the majority in District of Columbia v.
Heller, the 2008 Second Amendment decision that established an individual right to
own guns; Citizens United, the 2010 campaign finance decision that amplified the role
of money in politics; and Shelby County v. Holder, the 2013 voting rights decision that
effectively gutted the Voting Rights Act.
But the chief justice also considers himself the custodian of the Supreme Court’s
prestige, authority and legitimacy.
That puts the chief justice in an impossible situation. A recent essay in The Harvard Law
Review by Tara Leigh Grove, a law professor at William & Mary, called it a “legitimacy
dilemma.”
If the chief justice always votes with the court’s four other Republican appointees to
advance a conservative agenda, he may appear political, raising questions about the
court’s legitimacy. But if he takes account of that public perception in deciding how to
vote, he may appear to be caving to pressure that is itself illegitimate.
That was the dilemma Chief Justice Roberts faced in 2012, when he voted to save
President Barack Obama’s signature legislative achievement, the Affordable Care Act.
Liberals called him a statesman, conservatives a traitor.
In her recent biography, “The Chief,” Joan Biskupic concluded that the chief justice had
sacrificed legal rigor for something bigger.
“Viewed only through a judicial lens,” Ms. Biskupic wrote, “his moves were not
consistent and his legal arguments were not entirely coherent. But he brought people
and their different interests together. He acted, in short, more like a politician.”
A version of this article appears in print on June 27, 2019, on Page A1 of the New York edition with the
headline: Roberts Is the New Swing Vote, And Neither Party Is Overjoyed