[Robert DeLong]

Can't be, because Kavanaugh was sworn in Oct. 6th, 2018.

Also the decision would have been a 4-4 decision as Kennedy's last day on the court was July 31, 2018. Even if he had been there, it's anybody's guess as to how he would have voted.

[Windflier]

Also the decision would have been a 4-4 decision as Kennedy's last day on the court was July 31, 2018.

The decision was rendered in June, prior to Kennedy's retirement, hence the 5-4 ruling.