By Andrew Gould, Marc Tabolsky, and Fraser Holmes
Appellate developments rarely arrive with a single headline. More often, they show up as procedural changes, new decision-makers, and shifting court workloads — changes that quietly reshape risk, leverage, cost, and outcomes in high-stakes disputes.
In 2026, we see five trends worth watching closely: three in Texas (at the Supreme Court and the Fifteenth Court of Appeals) and two in the federal system (at the U.S. Supreme Court and the Fifth Circuit). Each has practical consequences for businesses and in-house counsel — especially when disputes reach the point where strategy turns on preserving issues, building the right record, and positioning for appellate review.
Below are the trends we’re tracking — and the practical implications we’re advising clients to keep in mind.
1) Texas: The Second Year of the Blacklock Court
The Supreme Court of Texas entered a new chapter in 2025. After a historic 36-year tenure on the Court — more than a decade as Chief Justice — Chief Justice Nathan Hecht retired. Governor Abbott appointed Justice Jimmy Blacklock to succeed him, and the Hecht Court became the Blacklock Court.
Chief Justice Blacklock moved quickly on the administrative side, with changes that prompted the Court to revisit core internal practices (including petition-stage briefing, discussed below) and other governance issues. And the Court’s composition shifted further with two new appointments: Justice James Sullivan (January 2025) and Justice Kyle Hawkins (November 2025). In practical terms, the Court experienced something close to a one-third refresh in a single year.
Those changes make 2026 a year to watch. Lawyers often say that each new Justice brings a new court; a new Chief Justice and two new members accelerate that effect. We will be watching not only Chief Justice Blacklock’s opinions, but also his stewardship of the Court as he settles into his second year in the center chair. We’ll also be watching the newest justices’ jurisprudential styles take shape — particularly Justice Hawkins, who has not yet had the opportunity to develop a signed-opinion footprint.
Why this matters for business: Shifts in membership and internal practice can change what issues the Court selects for review and how it shapes the law.
2) Texas: The New Petition‑Stage Practice
Texas “flipped the switch.” Effective January 1, the Supreme Court of Texas moved away from its prior two-step, pre-grant briefing structure and toward a gatekeeping model more familiar to U.S. Supreme Court practitioners. Under the revised framework, the petition and response do far more of the work: The Court’s initial decision whether to take a case is now typically made before merits briefing, and the rules require more focused, front-loaded advocacy at the petition stage.
The revisions also change what strong petition practice looks like. Petitions and responses are longer, the introduction is designed to function as a disciplined case for review, and issue presentation is tighter. Preservation is also pushed forward: Issues presented must identify where they were preserved in the record. In short, petition-stage filings are no longer a preview of what might come later. For most cases, they are the decisive first impression.
The strategic ripple effects are immediate. For advocates, a petition must now do double duty: It must both justify review and communicate, in condensed form, why the lower court got it wrong. Weak petitions will not be “rescued” by merits briefs that never get ordered. For parties, the upsides are also real: speed, cost, and efficiency — when done well.
Why this matters for business: Earlier inflection points mean earlier wins or losses. Petition-stage strategy (including the record you build below) can determine whether the Supreme Court ever reaches your issue.
3) Texas: Business Court Appeals Reach the Fifteenth Court
Year One of the Fifteenth Court of Appeals looked like you might expect for a new statewide appellate court: meaningful setup work, a steady cadence of state-facing matters, and a growing mandamus docket. But in 2025, Texas also saw the first final judgment from the Texas Business Court — a specialized trial court designed for certain complex business disputes.
That’s the hinge for 2026. As more Business Court cases reach final judgment, we expect to see the first meaningful wave of appeals from Business Court final judgments arriving at the Fifteenth Court, which has statewide jurisdiction over specified categories of cases, including certain matters connected to the Business Court. When those appeals begin landing in volume, the Fifteenth Court will start shaping Texas business law in a more sustained way — not just through interlocutory fights and mandamus skirmishes, but through merits decisions that provide guidance for the next round of deals and disputes. Expect recurring issues familiar to in-house counsel and deal teams: fiduciary-duty disputes, forum-selection and arbitration clauses, choice-of-law questions, interpretation of deal documents, veil-piercing claims, derivative standing, and more.
Why this matters for business: This is where precedent begins to form. Companies litigating (or drafting) with Texas in mind will be watching how the Fifteenth Court treats core corporate and contract issues — and Business Court practice will evolve in response.
4) Federal: The U.S. Supreme Court’s Merits Docket Keeps Shrinking
The Supreme Court of the United States continues to decide relatively few cases on the merits compared to historical norms. Recent terms have produced merits decisions in the mid‑50s range — well below prior decades, when annual merits outputs were routinely far higher.
The reasons aren’t mysterious. The Court’s so-called “shadow docket” — now often described as the “interim” or “emergency docket” — has become a more prominent feature of the institution: Cases arrive on compressed schedules, briefing is expedited, there is no argument, and outcomes can have outsized practical consequences — sometimes before any lower court has the final word. For businesses, that reality has two important implications. First, nationally significant disputes may be affected by emergency stays or injunction-related orders on short timetables. Second, fewer “bread and butter” commercial cases receive full merits treatment at the Supreme Court, leaving federal courts of appeals as the effective court of last resort for many major business disputes.
The practical takeaway for corporate counsel in 2026 is straightforward: Build strategies designed to win in the courts of appeals, because the odds of plenary merits review at the Supreme Court remain exceptionally low.
Why this matters for business: Businesses can’t depend on the Supreme Court to save them from adverse opinions. In many federal disputes, the circuit courts of appeals are where the law will effectively be made final.
5) Federal: The En Banc Fifth Circuit Is Back
The Fifth Circuit has never been timid about en banc review, but 2025 appeared relatively quiet. Then early 2026 brought a sharp reversal: a surge of en banc grants in a single sitting (seven), with more already in the pipeline. As one of us told Bloomberg Law, the volume of grants in that sitting was “unprecedented.”
If the pace holds, the court could be headed for one of its heaviest en banc calendars in recent memory. The longer arc suggests why: Separate writings and voting patterns have shown an increased willingness — especially among some of the newer judges — to call for full-court review.
For business litigants, the consequences are practical. While briefing schedules in ordinary appeals may not change much, a heavier en banc docket can affect how quickly opinions issue as chambers juggle an increased workload. And companies should not assume en banc review is a ready-made backstop for correcting an adverse panel decision in a commercial case. Recent grant patterns reflect a court often focused on issues with broad doctrinal, statutory, or regulatory stakes.
If you seek en banc review, the pitch must usually be bigger than the dispute itself: a circuit conflict, an entrenched doctrinal confusion, a recurring statutory question, or regulatory consequences that extend beyond the parties.
Why this matters for business: Uncertainty and timing risk increase when full-court review is more frequent. And if en banc is your plan, you need to frame the case in institution-sized terms.
Some Final Takeaways
From these trends, we see three practical takeaways:
- Front-load your appellate posture. Texas petition practice and federal merits-docket realities both reward early discipline: Preservation, record-building, and crisp issue framing need to happen long before “appeal” becomes the project.
- Plan for where finality actually occurs. In many federal cases, the court of appeals is the practical endpoint — and in Texas, the Fifteenth Court’s Business Court pipeline will increasingly shape the law that governs deals and disputes.
- Treat appellate risk as a business variable. Court composition, procedural changes, and docket shifts affect leverage, cost, and timelines. Factoring those dynamics into case strategy early can change outcomes.
Our appellate team will continue tracking these developments throughout 2026 — both for what they signal about the law and for what they mean operationally for businesses managing disputes. If any of these trends intersect with your risk profile, contract strategy, or active litigation, we’re happy to talk through how they may affect your approach.
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