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In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory that ties together these diverse decisions. However, after even modest reflection, it is apparent that the best way to understand the underlying dynamics of the Supreme Court’s 2008–2009 Term with respect to labor and employment law cases is to consider the voting patterns of the individual justices and the Court’s overall vote in each case.

The labor and employment law decisions from the Court’s 2008–2009 Term might be divided into two categories: “broad consensus” cases, which are decided by at least a 6-3 vote of the justices, and “close cases,” which are decided by a bare 5-4 vote. Even though a 6-3 vote indicates significant disagreement among the justices, we might call it a “broad consensus” in that, as we will see, a six-vote majority includes at least one justice from both the liberal and conservative wings of the Court. It is very revealing to first divide the Court’s decisions in this fashion and then arrange the decisions and the votes of the justices chronologically. Although the insight gained from this exercise will not surprise followers of the Court, even dedicated students of the Court will be impressed by its predictability in deciding the labor and employment law cases this last Term.


Preprint of an article later published in the American Bar Association's Journal of Labor and Employment Law.

  • 25 ABA J of Labor and Empl Law 107 (2010)