This is the year it really became the Roberts Court. Chief Justice John Roberts presided over Donald Trump’s impeachment trial, navigated the Court through unusual pandemic‐driven telephonic oral arguments—complete with toilet flushes and forgotten unmute buttons—and was in the majority more than anyone else, including all but one of the thirteen 5–4 decisions.
Perhaps most notably, Roberts shocked court‐watchers by joining the liberal‐leaning justices on three key cases decided at the end of June, involving LGBT rights, DACA, and abortion. That, plus Justice Neil Gorsuch’s writing the opinion in the Title VII sexual orientation/gender‐identity case, Bostock v. Clayton County, set off a circular firing squad on the right as so‐called common‐good constitutionalists went after originalists and textualists.
Still, when you look at the numbers, the term was anything but a judicial left‐turn. Of those 13 5–4 decisions, nine had Roberts joining the more conservative justices and only three had a conservative joining the liberals (Roberts on DACA and abortion, Gorsuch on Oklahoma as Indian Country). Last term, there were eight 5–4 cases where a conservative justice joined the liberals and only seven where conservatives stuck together. That’s why progressives breathed sighs of relief but aren’t treating Roberts as the second coming of Anthony Kennedy, let alone David Souter.
But what about libertarians? To be honest, most case outcomes were overshadowed by the Court’s decision not to take up any of the slew of very good cases presenting claims regarding the Second Amendment and qualified immunity, respectively. Both areas are crying out for the justices’ clarification and legal development, the former after a decade of neglect that has allowed the lower courts to engage in massive resistance and the latter presenting a cross‐ideological alliance of policy reformers.
The Second Amendment cert denials were a surprising disappointment because the Court had, earlier in the term, declared moot N.Y. State Rifle & Pistol Association v. City of New York, which the justices had agreed to hear soon after Justice Brett Kavanaugh replaced Justice Anthony Kennedy — and with a concurrence by Kavanaugh that noted the Court “should address that issue soon.” The qualified immunity denials also came as a shock, coming in the middle of nationwide protests against police abuse. Notably, Justice Clarence Thomas dissented from cert denials on both issues.
As to the actual rulings, libertarian groups didn’t tend to participate in the high‐profile cases on abortion, employment discrimination, or Trump tax returns, so there wasn’t too much to get particularly happy or sad about. The biggest victory was in Espinoza v. Montana Department of Revenue, which removed the last legal roadblock to school choice programs nationwide. The biggest loser, oddly enough, may have been Department of Homeland Security v. Regents of the University of California, the DACA case, because that essentially created a ratchet for executive power — though of course there the policy upside to the preservation of this otherwise unlawful program is huge.
Cato filed in 11 cases altogether, coming out of the term with a 6–4‑1 record (counting the mooted Second Amendment case as a wash). That’s not as good as the previous term’s 12–4 clip, but still beats our biggest rival, the U.S. government, which by my count went 12–11. (It’s an apples‐and‐oranges comparison, I know, because the government typically appears as a party, not simply amicus, and always participates in oral argument.) Cato won 8 votes from Justices Gorsuch and Kavanaugh, 7 votes from Justice Alito, 6 votes from Chief Justice Roberts and Justice Thomas, 4 votes from Justice Sotomayor, 3 votes from Justices Breyer and Kagan, and 2 votes from Justice Ginsburg.
Here’s the full breakdown, in the order the opinions arrived:
Winning side (6): Georgia v. Public.Resource.Org Inc.; Liu v. SEC; Seila Law v. CFPB; Espinoza v. Montana Dep’t of Revenue; Barr v. AAPC; Little Sisters of the Poor v. Pennsylvania.
Losing side (4): United States v. Sineneng‐Smith; FOMBPR v. Aurelius Investment, LLC; DHS v. Regents of the University of California; USAID v. AOSI.
Moot (1): N.Y. State Rifle & Pistol Ass’n Inc. v. City of New York
Next term already has some exciting cases, though remember that none of them will be decided before the election. The Court will consider: whether Delaware can limit judges affiliated with a political party on the state’s three highest courts to no more than a “bare majority,” reserving all other seats to the “other major political party” (Carney v. Adams); if Philadelphia can ban Catholic Social Services from its foster/adoption program because they won’t place kids with gay couples (Fulton v. Philadelphia); whether Obamacare’s individual mandate is still constitutional—and if not, what of the statute can survive (California v. Texas); whether copyright protections extend to software (Google v. Oracle); and whether the House Judiciary Comm. can get the Mueller investigation’s grand jury materials (DOJ v. House Judiciary Committee).
I’ll have more to say in future commentary, but if you’d like to learn about all these cases and trends from the perspective of Cato‐friendly scholars and lawyers, make a note to watch our 19th Annual Constitution Day Symposium, which will be held September 17 (Constitution Day). That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review. And this year it also coincides with the release of my new book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, which is now available for pre‐order.
And with that, we can bid adieu to the Supreme Court until October — except that this summer, the justices, like the rest of us, aren’t going anywhere.
