The Effectiveness of Cato’s Center for Constitutional Studies at the Supreme Court
 

imageTable of Contents:
Introduction
Free Speech
Property Rights
Equal Protection
Voting Rights
Tax Law
Federal Jurisdiction
Civil Procedure
Criminal Law
Cato’s Amicus Briefs Supporting Petitions for Certiorari

Introduction

The Cato Institute is one of the biggest and most effective filers of amicus curiae (Latin for “friend of the court”) briefs in the Supreme Court. Amicus curiae briefs are filed by third parties who have a special interest or expertise in a case and want to influence the Court’s decisions in a particular way. In all our briefs Cato maintains an unwavering commitment to articulating for the Court how the principles of liberty and a commitment to the original public meaning of the Constitution should guide their decisions. Amicus briefs can either be in support of or in opposition to a petition for a writ of certiorari (know in legal shorthand as a “cert petition”), meaning that an amicus is advising on whether the Court should hear a case; or they can be “on the merits,” meaning that an amicus is making arguments on how the Supreme Court should rule in a case it has already agreed to hear.

Over the five most recent Supreme Court terms (2008–2009 through 2012–2013), Cato was the fifth most frequent filer of amicus briefs on the merits, and the fourth most frequent filer of amicus briefs in support of certiorari. This last term, from October 2012 to June 2013, Cato was also one of the most successful amicus filers, with the Court siding with Cato 15 out of 18 times. For briefs supporting cert, the Court took 28 percent of cases in which Cato filed, compared to the Court’s typical average of taking only 1 percent of cases seeking review. Petitioners to the Supreme Court from all over the country now actively seek Cato’s support — so many that we often have to turn some away due to lack of resources.

In recent years, amicus filings have exploded. Two terms ago, the challenge to the Affordable Care Act, NFIB v. Sebelius, drew 136 amicus briefs. Taking a lead in that historic challenge, Cato for the first time filed an amicus brief at every level of the litigation, from the first motions to dismiss before the trial court up through the Supreme Court. Cato also took the lead in coordinating the amici (“friends,” the plural of amicus) in order to hit the Affordable Care Act from all sides. In addition, we were the only organization to file a brief on each of the four issues the Supreme Court had designated for review.

Amicus briefs serve a variety of purposes. Some inform the justices about economic, historical, scientific, or sociological data. Those briefs can be useful in more esoteric cases that are difficult for even the justices to understand. For a case dealing with a minor adjustment in banking regulations, for example, it can be helpful for those who are more familiar with banking practices to tell the Court how those changes will work on the ground. Other briefs can focus on a particular legal argument that is not fully explored in the merits briefs, or explain the scope of the problem that the Court is asked to address.

Some amicus briefs — actually a significant number of them (particularly in the highest-profile cases) — are just “me too” briefs. “Me too” briefs merely restate the arguments for the main parties in different language. These are not helpful to the Court and are usually ignored.

At Cato, we actively avoid “me too” briefs. We work with the counsel for the parties and other amici to discuss what arguments need to be covered if there is not enough space in the merits brief to address them. A properly coordinated array of amicus briefs will hit all sides of the argument, with little or no overlap, and provide information for the Court about the scope of the problem and the effects of possible rulings.

Because of effective lawyering and strategic amicus coordination, as well as a Constitution that, interpreted properly, is quite libertarian, the Supreme Court has been one of the few friends in government for advocates of individual liberty. Of the 15 times the Court sided with Cato, seven of those were unanimous, showing that even the liberal justices have little tolerance for our era of excessively overreaching government. Cato also went three for three on the Court’s blockbuster, end-of-term cases: affirmative action, same-sex marriage, and the Voting Rights Act. We were was the only organization to support the constitutionally correct outcome in each of those cases, demonstrating that the libertarian view of the Constitution is truly a third way that is not represented by the two predominant parties.

Below are further descriptions of the 15 cases where Cato supported the winning side, what we argued in our brief, and how the Court eventually ruled.

Free Speech

Agency for International Development v. Alliance for Open Society International:

A federal statute requires that nonprofit organizations that receive federal funding for overseas HIV/AIDS prevention must adopt policies explicitly opposing prostitution. Several nonprofits receiving federal funds challenged this requirement on the ground that it violates their First Amendment rights. The First Amendment not only protects against censorship, it also protects against the government forcing people to speak.

At the Supreme Court, Cato’s amicus brief argued that the requirement to adopt a policy opposing prostitution significantly burdens political speech and violates the “unconstitutional conditions” doctrine, which prevents the conditioning of generally available federal benefits on the waiver of fundamental rights (e.g., “you can’t have Social Security unless you stop criticizing the government.”). The First Amendment limits Congress’s power to make the receipt of federal funds contingent on conditions that burden free speech. We also argued that the Spending Clause, which allows Congress to spend money to further its enumerated powers, does not give Congress the power to induce citizens to relinquish their constitutional rights.

Outcome: The Court, with a diverse six-justice majority including Chief Justice Roberts with Justices Breyer, Sotomayor, Kennedy, Ginsburg, and Alito, agreed with Cato that the policy violates the First Amendment because it uses federal funding to compel the affirmation of a belief that is beyond the specifics of the funding program.

Property Rights

Arkansas Game and Fish Commission v. United States:

U.S. Army Corps of Engineers occasionally flooded the Black River Wildlife management area over a period of six years, killing over 18 million board feet of timber. The Arkansas Game and Fish commission sued, arguing that the intermittent flooding was an uncompensated taking of property under the Fifth Amendment’s Takings Clause, which prohibits taking “private property … for public use without just compensation.” The lower courts ruled that temporary, intermittent flooding could never be a taking. Cato filed an amicus brief supporting a petition for certiorari, and the Court agreed to take the case. Cato also filed on the merits, arguing that the rule created by the lower Court was not supported by the Constitution and the previous takings cases decided by the Supreme Court. The fact that the flooding was intermittent should never be a decisive factor for a taking. If a temporary action permanently deprives someone of valuable property interests, then it is a taking. What matters is whether the injury to the property is substantial, not whether the invasion that caused it was short-lived.

Outcome: A unanimous eight-justice majority (Justice Elena Kagan was recused) agreed with Cato that the long-standing test for resolving physical takings claims remains unchanged regardless whether the taking was temporary or permanent.

Cato also filed in support of the Game and Fish Commission when the case was sent back down to the court of appeals after the Supreme Court ruling (called a “remand”). Again, Cato helped vindicate the rights of property holders and the Commission was awarded $5.6 million.

Horne v. U.S. Department of Agriculture:

U.S. agricultural policy can be seen, but it can hardly be believed. Much of it is a holdover from the New Deal, when bizarre economic theories were solidified into federal law. There are so many special interests that depend on those policies, however, that it will likely never be changed politically. So again we must turn to the courts.

Raisin growing in the United States is far more complicated than you might think. In order to stabilize prices, every year a federal committee (the Raisin Administrative Committee) recommends to the Department of Agriculture how much of the raisin crop should be kept off the market. The department then issues “marketing orders” so that a “reserve tonnage” of raisins can be kept off the open market. Those raisins are then often sold at below-market prices to school-lunch programs. California raisin farmers Marvin and Laura Horne had the audacity to turn their own grapes into raisins, and they claimed that under the language of the law their production model exempted them from reserve set-aside requirements.

The USDA disagreed and sued the Hornes to recover the approximate market value of the raisins, plus civil penalties and unpaid assessments. After losing in the administrative review (that is, in the agency’s own internal procedures for adjudicating disputes), the Hornes brought a Fifth Amendment Takings Clause suit against the marketing order in federal court. In response, the government argued that the Hornes couldn’t bring a takings claim without ending the existing case, paying the money owed, and then filing a separate suit in the Court of Federal Claims. The Ninth Circuit agreed with the government, and Cato urged the Supreme Court to take the case by filing an amicus brief in support of certiorari. The Court took the case, and Cato’s brief on the merits argued that all unjustified monetary orders are necessarily takings of property without just compensation. We also argued that the Ninth Circuit’s ruling allowed the government to file a suit and then block a constitutional defense by claiming that it was brought prematurely (when it was the government that filed the suit in the first place).

Outcome: The Supreme Court unanimously agreed with Cato and held that farmers who are fined for violating agricultural marketing orders and seek to challenge those fines as unconstitutional “takings” can bring the claims in federal district courts without first paying the fines. This ruling opens new and less-costly avenues for challenging bizarre, outdated laws like “raisin marketing orders,” of which there are, of course, far too many.  

Koontz v. St. Johns River Water Management District:

There is a disturbing practice that is all too common throughout the country: municipalities will “ask” those seeking building permits to do something in exchange. This is one of the most pernicious outcomes of an increasingly bureaucratic and regulatory state. A developer must, of course, get a handful of permits to do almost anything, but government bureaucrats will often agree to waive some of those requirements if the developer agrees to refurbish a public school or a public park. Municipalities do this because they feel protected from legal action by the high costs of litigation and by Supreme Court precedents that allow them to extort improvements from permit seekers if the improvements are somehow related to requested permit.

Florida landowner Coy Koontz wanted to develop his property in the Florida wetlands. He offered the St. Johns River Water Management District a conservation easement in exchange for the required permits. The District refused and asked instead for Mr. Koontz to either 1) scale back his development plans and give the District a bigger conservation easement; or 2) pay contractors to make improvements to 50 acres of District-owned property miles away from his land. He refused and was denied the permit. He then filed suit on the ground that the denial of the permit was an unconstitutional taking of his private property. Although he won at the trial and appellate levels, the Florida Supreme Court reversed, ruling that the relevant U.S. Supreme Court precedent applied only to land, not to personal property such as the money and labor that Koontz would have had to spend in order to improve the government land.

Cato’s amicus brief argued that the government does not have the authority to withhold permit approvals as a penalty for failing to submit to unlawful government-imposed conditions. The Supreme Court has already held that any extra expenditure that a government requires as a condition for developing property must be linked to the proposed project. Cato’s brief argued that this rule should apply equally to both land and personal property, and also argued that holding land hostage in order to force landowners to complete politicians’ pet projects is itself an unconstitutional taking of private property.

Outcome: A five-justice majority held that the government’s demand for property (here it was essentially cash) in exchange for a permit can be a taking both when the permit is denied as well as when it is granted. Given the widespread practice of “permit extortion,” this is an important victory. The District tried to get Mr. Koontz to pay for a pet project that was not even near his property. That type of extortion is very attractive to cash-strapped governments, and the Court’s ruling restores some of the constitutional protections of the Takings Clause to victims of government overreach.

Equal Protection

United States v. Windsor:

One of the blockbuster cases of recent years concerned a challenge to Section 3 of the Defense of Marriage Act (DOMA), which defined “marriage” in all federal statutes as a union between one man and one woman. More than 1,000 federal statutes and regulations deal with the concept of “marriage” in some way, and under DOMA same-sex couples who were legally married in their state were denied federal benefits. Edith Windsor, the plaintiff, was in a relationship with Thea Spyer for more than four decades when they legally married in Canada in 2007. Upon Spyer’s death in 2009, Windsor faced a federal estate tax burden of $363,053 because Section 3 of DOMA prevented the IRS from recognizing Windsor as a surviving spouse. Windsor sued for a refund of the tax money.

In a case of interesting bedfellows, Cato joined the Constitutional Accountability Center (CAC) on a brief arguing that DOMA violated the Fifth Amendment’s guarantee of equal protection. The CAC is a think tank and public-interest law firm dedicated to “fulfilling the progressive promise of our Constitution’s text and history.” Cato and CAC usually butt heads, most prominently on the Affordable Care Act, but this time we joined forces, once again proving the unique position of libertarian legal arguments.

The equal protection principle forbids the federal government from arbitrarily disfavoring a class of individuals under the law, the brief argued, which Section 3 of DOMA did by discriminating against lawfully married individuals on the basis of their sexual orientation. DOMA was motivated by prejudice against homosexuals and in no way furthered any legitimate federal goals.

Outcome: A five-justice majority agreed with Cato and CAC, holding Section 3 of DOMA unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” Justice Anthony Kennedy, writing for the majority, held that the federal government cannot intrude into a state’s traditional role in recognizing marriages in order to bring disfavor onto an unpopular minority.

After supporting marriage equality for longer than nearly any institution in Washington, D.C., it was gratifying to see the Court adopt Cato’s position. This was a trailblazing decision and an important step on the road to equal rights for the lesbian, gay, bisexual, and transgender community.

Fisher v. University of Texas at Austin:

Abigail Fisher, who is white, was denied admission to the University of Texas at Austin even with academic credentials superior to those of many admitted minority applicants. She sued UT–Austin for its policy of taking race into consideration in selecting its incoming freshmen.

Ten years ago, the last time that the Supreme Court heard a case involving affirmative action, they produced two rulings that have long vexed legal scholars. The first one, Gratz v. Bollinger, held that the University of Michigan’s system for awarding points to minority applicants was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment. Under that system, 100 points was needed for admission and minority students got an automatic 20 points from the start.

In Grutter v. Bollinger, however, a case argued on the same day, the Court upheld the University of Michigan Law School’s more holistic system of favoring minorities. That system gave minorities a more undefinable “plus” for admissions.

Whatever the constitutional difference between a points system and a “plus” system, it is unquestionably true that racial qualifications should always get the highest level of constitutional scrutiny, meaning, essentially, that courts won’t just take a school or a state’s word for it that such racial balancing is necessary. Cato amicus brief said just that — that the lower courts inappropriately deferred to UT–Austin’s policy instead of subjecting it to constitutionally required strict scrutiny. The lower courts explicitly presumed that the school was acting in good faith rather than evaluating the merits of UT’s decision to take race into account.

Outcome: After months of waiting for a blockbuster decision that might have ended affirmative action, a seven-justice majority took only 13 pages to agree with Cato and remand the case to the lower court to apply strict scrutiny to the university’s program. While it wasn’t an Earth-shaking decision, it was an important victory for the proposition that all racial classifications, positive or negative, are damaging to a free society and, at the very least, the government must give a good reason for doing it. Also, it remains to be seen how many universities would be able to keep their affirmative action programs if strict scrutiny were applied. If most programs can’t withstand the new legal standard, then affirmative action may be on its last legs.

The case was sent back down to the lower court to apply the new standard. Cato also filed in that case, arguing that the university’s affirmative action system cannot meet the standard. As of press time, a decision is still pending.

Voting Rights

Shelby County v. Holder

The Shelby County case was a major victory with far-reaching implications. In order to understand that victory, however, we must first look at the history of the Voting Rights Act (VRA).

The Voting Rights Act of 1965 was an unprecedented, but necessary, law. After decades of Jim Crow, the disenfranchisement of African Americans was pervasive. The methods of disenfranchisement also became more devious. Many Southern states cunningly avoided the requirements of the Civil Rights Acts of 1957 and 1960, and by 1965 Congress had had enough. Even if strong prohibitions on certain practices were passed, the South would find a way around them. In 1965, for example, only 6.7 percent of eligible African Americans in Mississippi were registered to vote.

In order to solve this problem, Congress took the extraordinary step of taking control of the election laws of the Southern states. They designated most of the states of the old Confederacy as “covered” jurisdictions that would have to get “preclearance” from either the Department of Justice or a special district court in Washington for every change in voting laws. In effect, the federal government told those areas that they were presumed guilty of racism, and that every change in election laws would have to be proved not to have a racial effect. (Put another way, the “bankrupt” state election regimes were put under federal “receivership.”) Understanding that this radical law fundamentally changed the relationship between the covered states and the federal government, Congress only authorized it for five years.

In order to determine which areas would be “covered” jurisdictions, and thus presumed racist, a formula was devised in which two criteria had to be met: 1) a jurisdiction had to have used a “test or device” to limit voting in 1964 (e.g., a literacy test); and 2) less than 50 percent of eligible voters either registered to vote or voted in the election of 1964. The formula did its job, and only those states that were the most egregious violators of voting rights became covered jurisdictions.

In 1970, and again in 1975, the VRA’s “preclearance” provision (Section 5) and coverage formula (Section 4(b)) were reauthorized. On these occasions, the results of the elections of 1968 and 1972, respectively, were used to cover an increasingly random set of jurisdictions, including all of Texas, Alaska, and Arizona; three of the five New York City boroughs; some counties in California, South Dakota, and Florida; and 10 towns in New Hampshire. In 2006, when Section 5 was reauthorized for another 25 years, the coverage formula remained unchanged. It is as if the America of 1965–75 was frozen in legal amber.

Shelby County, Alabama, a covered jurisdiction, challenged the continued relevance of the antiquated system of preclearance. Cato supported Shelby County and filed a brief arguing that Section 5, as applied via Section 4(b), violated both the Fourteenth and Fifteenth Amendments and the principles of federalism and fair elections. At the time it was passed the system was justified, but those exceptional circumstances have obviously expired.

Outcome: Five justices agreed with Cato and struck down the coverage formula on the ground that it was based on data more than 40 years old. Its obsolescence made it an impermissible burden on the states and their ability to formulate their own public policies. This was a major victory that will eventually change the electoral map of the country.

Tax Law

PPL Corp v. Commissioner of Internal Revenue

Government bureaucrats can be a humorless and formalistic bunch, especially those in the IRS. PPL Corp. is an American energy company that had the misfortune to run afoul of both the British and American taxman. The UK passed a “windfall profits tax” that took 51.75 percent of “excess profits” from PPL Corp. For decades, the IRS has given corporations a tax credit for “income, war profits, or excess profits” tax paid to another country. This time, however, the IRS denied that credit on the ground that the British tax did not fit the literal definition of an income tax. Cato’s filed in support of PPL and argued that the IRS’s reasoning was excessively formalistic and looked too much at the semantic label that the British tax carried rather than its practical application and its economic substance.

Outcome: The Supreme Court unanimously agreed with Cato and held that the “windfall tax” is deserved a tax credit from the IRS.

Federal Jurisdiction

Kiobel v. Royal Dutch Petroleum

International law has become a favorite tool of progressives who hope to get their preferred values, such as labor rights, enforced against other countries, corporations, and possibly even the United States. One of the oldest statutes in America, the Alien Tort Statute of 1789 (ATS) was passed by the first Congress and has long been used to allow foreigners to bring lawsuits in federal courts for torts committed “in violation of the law of nations.” But American courts should not be the courts of the world, and generally speaking there should be some limitation on who can sue in American courts and under what circumstances.

In this case, twelve Nigerians sued the Royal Dutch oil company and its Nigerian subsidiary in U.S. federal court for allegedly violating customary international human rights law in concert with Nigerian soldiers in Nigeria. In other words, none of the parties had any connection with the United States, and the alleged offense happened in Nigeria. The Supreme Court agreed to hear the question of whether the ATS gives U.S. federal courts jurisdiction over lawsuits for violations of international law on foreign soil.

The case was actually argued twice, with the Court first hearing the question of whether the ATS applies to corporations, and then later asking the parties to argue the question of whether the ATS applies when there are no ties to American parties or territory. Cato filed in support of the oil company both times. On the second question, we argued that both the understanding of the first Congress and the law of nations in 1789 require that there be some territorial connection between a country that asserts jurisdiction over a case and the claim that it asserts. We also argued that courts should resist relying on so-called “evolving” standards of international law — which are usually identical to the evolving opinions of liberal law professors — in order to define the ATS’s extraterritorial scope.

Outcome: The Supreme Court unanimously agreed with Cato and held that the longstanding presumption against applying U.S. law extraterritorially applies to ATS claims as well. Despite the outcry from many on the left, this ruling did not absolve Royal Dutch Oil of any responsibility, but merely said that the legal case could not be brought in U.S. courts.

Civil Procedure

Standard Fire Insurance Co. v. Knowles

Class action suits are increasingly becoming tools to enrich lawyers and harass businesses. While class action suits certainly have a place in the law, they should be held to defined and predictable standards that help curtail the more abusive practices.

This complex case dealt with how much money “in controversy” is needed in a class action suit to “remove” the case to federal courts. Under the Class Action Fairness Act (CAFA) of 2005, a defendant who is sued in state court can shift the case to federal court if the amount of the suit is more than $5 million. There are a variety of reasons why a defendant would prefer to shift a suit to federal courts, not least of which is that the quality of judging is often better.

When a class action suit was brought against Standard Fire Insurance, the named plaintiff, Mr. Knowles, hoped he could avoid having the case moved to federal court by simply stipulating that the class would not seek more than $5 million. However, he stipulated this amount before the size and scope of the class (called the “certified class”) had been defined.

It is strange to stipulate a limit on damages before a class is defined. Clearly, members who are added to the class might raise the amount of damages, and a mere stipulation should not be allowed to control the total amount in controversy. In fact, it seems likely the entire move was a subterfuge to keep the case in state court in order to make the lawyers’ jobs easier and to make them richer (lawyers are usually the ones who win the most from class action suits).

But, as Cato argued in the brief supporting Standard Fire, strategic subterfuges designed to make a lawyer richer should not be allowed to defeat the due process rights of absent class members. If the lawsuit were allowed to proceed with the stipulated limit on damages and the class was certified after, those potential plaintiffs who later joined the class (usually without their knowledge) would be bound by a judgment that would both negate their right to sue over the same claims and limit their restitution under those claims.

Outcome: The Supreme Court unanimously agreed with Cato that the plaintiffs’ lawyer’s stipulation cannot limit the rights of absent plaintiffs and destroy a defendant’s right to remove the case to federal court. The decision is an important limitation on the increasing amount of class action malfeasance on the part of lawyers who seem to want to get rich more than they want to do justice.

Gabelli v. SEC

Statutes of limitations are important to ensure that charges against people and companies can be fairly adjudicated with fresh memories and fresh evidence. In securities law, a federal statute forbids bringing a case for fraud against a business more than five years after the alleged wrongdoing. In April 2008, the Securities & Exchange Commission (SEC) sued the managers of Gabelli Funds LLC, a mutual fund, for allegedly defrauding of the fund’s investors six years previously, in August 2002.

Although this is clearly longer than five years, there are some exceptions to the general five-year rule. In some situations, such as some fraud cases, the statute of limitations begins when the fraud is discovered, not when it was allegedly last committed.

Yet the federal government discovered the alleged fraud in 2003, but they waited until 2008 to bring suit. At oral argument, the government made shocking assertions that essentially boiled down to, “we can bring a suit whenever we want, we’re the government.”

Cato filed a brief on behalf of Gabelli, arguing that allowing the government’s suit would not only go against the intent of Congress in passing the five-year statute of limitation, but it would effectively rewrite the law according to judges’ policy preferences. We also argued that there was no good reason to change a rule to give an exemption to government lawsuits that would not also be available to private plaintiffs. The government, with its massive set of investigators, its incredibly broad enforcement powers, and its general tendency to be a bully, should not get an exception to statutes of limitations. Such an exception is guaranteed to be abused.

Outcome: The Supreme Court unanimously agreed with Cato and held that the statute of limitations begins to run when the fraud takes place, not when it is discovered. Government agencies are still prone to be bullies, particularly when it comes to financial regulation, but this victory means that they too are obliged to obey basic and clear statutes of limitations.

Comcast v. Behrend

In 2011, the Supreme Court ruled that a class action suit against Walmart for gender discrimination had used a class that did not have enough in common to be considered a legally official, or a “certified,” class. In that case, Wal-mart v. Dukes, the certified class was originally the 1.6 million women who worked or had worked for the company since 1998. The Court ruled that such a large class only had “common questions” — that is, because they are female employees they shared the question “were they discriminated against?” — but that class certification required “common answers” — such as, there is some reason to believe they were discriminated against other than that just because they were female employees.

Comcast v. Behrend is somewhat a sequel to the Wal-mart case. The Court was asked whether a plaintiff’s methodology for calculating class damages (expert testimony) is admissible for created common answers for a class certification. Cato filed in support of Comcast, arguing that the Court should clarify whether the Wal-mart case requires a full inquiry into the reliability and admissibility of expert testimony (a so-called Daubert inquiry). Without analyzing the reliability of expert testimony, defendants in class action suits would be disadvantaged because a class action suit is often won or lost based on whether the class is certified. Easy certification based on unexamined expert testimony could lead to defendants settling frivolous lawsuits. Absent class members (those who are part of the suit but often don’t know it) would also be hurt because certification based on inadmissible evidence may cause them to overestimate their chances of success and encourage those members to remain in the class. Since all class members who neglect to opt out of the case are ultimately bound by the final judgment, potentially valid claims may be undercut as well.

Outcome: A five-justice majority agreed with Cato and held that the class was improperly certified due to the lack of rigorous analysis at the class-certification stage of the litigation. Like the Knowles case, this was an important victory for ensuring that class action suits are worthwhile methods for keeping businesses in line and not just ways to make attorneys rich.

Criminal Law

Sekhar v. United States:

Federal prosecutors love stretching statutes to cover behavior that the statute was never meant to cover. It is becoming a disturbingly common practice, and it is part of the general trend of federal overcriminalization abuses. Federal prosecutors have been known to sit around the office and play a game: name a person — Kim Kardashian, Mr. Rogers, Peyton Manning, whoever — and see how many federal crimes you could feasibly charge them with. It’s all in “good fun” until someone, such as Mr. Sekhar, gets caught up in such shenanigans.

Mr. Sekhar managed a technology firm that was hoping, like any firm, to get investors. In particular, Mr. Sekhar wanted the New York Common Retirement Fund, a large public-employee pension fund, to invest in his firm. In spite of Mr. Sekhar’s efforts, the general counsel for the New York Comptroller’s office recommend against investing in the firm. In response, Mr. Sekhar sent emails to the general counsel threatening to expose the lawyer’s extramarital affair to the media if he didn’t change his recommendation.

Mr. Sekhar was caught, but he was bizarrely charged with violating the Hobbs Act, which prohibits “obtaining property from another” via threats, force, violence, etc. Mr. Sekhar was alleged to have “obtained” the general counsel’s change of recommendation via a threat. Whatever a recommendation is, it doesn’t seem to be property that is obtainable. Mr. Sekhar is likely still a criminal, but he is not a federal criminal under the Hobbs Act, and that is an important distinction for a constitutionally limited government.

Cato filed in support of Mr. Sekhar and argued that the meaning of federal statutory language should not be stretched to reach conduct that Congress never meant to prohibit. We also argued that federal prosecutors should not be able to expand their power into areas of traditional state jurisdiction. Such power grabs contravene two well-established principles of statutory interpretation. The first is the rule of lenity, which requires “clear and definite” statutory language before the Court will choose the harsher of two plausible readings of the law. The second is the federal non-intrusion rule, which militates against federal encroachment on the states’ criminal police power in the absence of a clear statement of Congressional intent.

Outcome: The Supreme Court unanimously agreed with Cato and reversed the lower court’s ruling, holding that legal advice does not qualify as “transferable property” and therefore does not fit the Hobbs Act’s definition of extortion. Although this ruling will not have far-reaching effects — very few people have been in Mr. Sekhar’s exact position — it is an important victory in the fight against overcriminalization. Of course, it is also an important victory for Mr. Sekhar.

Bailey v. United States

Under the Fourth Amendment, search warrants give law officers access to areas that are usually off-limits in order to search for particularized evidence and contraband. In 1983, in a case called Michigan v. Summers, the Supreme Court ruled that officers executing a search warrant can detain those on the premises. Because the authority to search a location does not necessarily extend to the people in that location, the Court in Summers ruled that officers are authorized to detain only to 1) prevent flight; 2) minimize the risk of harm to officers; and 3) assist in the orderly completion of the search. This case was a challenge to how far those justifications for detention can reach.

When police officers were about to conduct a warranted search of a home, they witnessed Chunon Bailey — who knew nothing about the impending search — exit the home and begin to drive away. Officers followed and stopped Bailey, detaining him about a mile from the house. The government argued that the rule in Summers permitted Bailey’s detention, and the district court and the U.S Court of Appeals for the Second Circuit agreed.

Cato supported Bailey in the Supreme Court, arguing that there were no limiting principles to the police’s power to detain without probable cause, thus transforming a particularized search warrant into a license to detain any person thought to be connected to the premises. Although the Second Circuit said that detention should occur “as soon as practicable,” that vague standard lacked any principled basis, conflicted with the underlying values of the Fourth Amendment, and it did not clearly guide police as to when a detention is permissible. Finally, we pointed out that detaining a suspect over a mile from the place being searched has nothing to do with police control of the premises; it merely enables the police to hold someone in the hope that probable cause will materialize before long.

Outcome: A six-justice majority reversed the circuit court’s holding and agreed with Cato that the Summers rule is limited to the immediate vicinity of the place to be searched. Although Mr. Bailey’s situation may seem unique, law enforcement officers consistently try to stretch the Fourth Amendment to its breaking point. Limiting detentions to the rationales articulated in Summers will help keep police officers within constitutional boundaries.

Florida v. Jardines

One of the most important questions in Fourth Amendment law is whether a police activity is considered a “search,” which means that the police officers ventured into some area protected by the Fourth Amendment. A police officer looking into your car through your windows is not a search, thus requiring no warrant or probable cause, but a police officer using high-tech, heat-vision goggles to look into your house is a search, thus requiring probable cause or a warrant.

Although it is difficult to draw a precise line between searches and non-searches, the Supreme Court has said that a search occurs when an officer violates a “reasonable expectation of privacy.” In other words, anyone can look into your car windows, so you shouldn’t have a claim if a police officer sees illegal contraband through your windows. That is different than using high-tech, heat-vision goggles that are not broadly available to the general public, and thus an officer violates a reasonable expectation of privacy if he uses those goggles to look into your house.

In November 2006, Miami-Dade police officers brought a drug-sniffing dog to the front door of Joelis Jardines’s home without a warrant. When the dog detected the smell of drugs, the officers sought a search warrant and found marijuana was being grown inside the house. At the Supreme Court, the question was essentially whether a drug-sniffing dog is more like using heat-vision goggles, and thus a Fourth Amendment search that requires a warrant, or whether using a dog is more like looking in the windows of a parked car, something that is in “plain view” (or “plain smell”) and thus does not require a warrant.

Cato’s brief supported Jardines but also urged the Court to revise Fourth Amendment search-and-seizure doctrine more broadly. Rather than inquire into whether a person has a “reasonable expectation of privacy,” courts should determine whether a “search” has occurred by ascertaining whether police accessed something that was hidden from plain view. When a person has sought to hide something physically — by obstructing it, muffling sounds, etc. — the Fourth Amendment and the Court should forbid searches except when there is probable cause and a warrant (or some exception to the warrant requirement).

Outcome: A five-justice majority agreed with Cato that a dog brought to sniff at the front door of a house is a Fourth Amendment search requiring a warrant. Although the Court did not accept Cato’s invitation to revisit search-and-seizure doctrine, it was an important victory for personal privacy and Fourth Amendment restrictions on law enforcement.

Cato’s Amicus Briefs Supporting Petitions for Certiorari

In addition to filing amicus briefs supporting parties before the Supreme Court, the Cato Institute files briefs that urge the Court to hear cases called “amicus briefs in support of certiorari.”

Before the Supreme Court will even hear a case the Court must grant a petition for certiorari (or just “granting cert”), which is legalese for agreeing to review a case. It is very difficult to convince the Court to do this. Over the last 10 years, the Court has received an average of 8,000 petitions per year and only grants around 1 percent, or about 80 per year.

Given the volume of cert petitions, Supreme Court clerks spend much of their time reviewing petitions and recommending to the justices what actions should be taken. In some ways, it’s a lot like reading resumés, although court clerks give petitions more attention than most resumés get. Many petitions can be discarded quickly, but others require more consideration.

Having an organization like Cato file a brief in support of granting cert can flag the case for the clerks and greatly increase the chances of getting a case heard, somewhat like how a resumé is beefed up if it also comes with a personal recommendation.

Some commenters have recently opined that, by not filing amicus briefs in support of cert as often as their counterparts, liberal groups are “ceding a key way to influence the Supreme Court.” In an article on Slate.com called “The Early Brief Gets the Worm,” Adam D. Chandler wrote that, of the lucky few cases that the Court takes, those that were granted cert

were more likely to have gotten a helping hand from a friend-of-the-court brief, filed by an outside group with an interest in the case’s outcome. Influence, in this sense, is all about timing. Amicus briefs, as they’re known, tend to pile up on both sides of a case once the court takes it, all competing for the justices’ attention. But the amicus briefs filed before the court grants cert are much rarer, and, accordingly, more influential. Yet this is a tool that liberal groups often fail to use.

In 2008, when Chandler wrote those words, Cato was not even among the top 16 filers of amicus briefs supporting certiorari. In 2013, when Chandler reviewed the previous three years of briefs, he revisited the top 16 from 2008 and asked “Where are they now?” Cato jumped into fourth place. As Chandler wrote on SCOTUSblog, the influential Supreme Court-watchers website:

The newest top-five filer, however, was not on the leaderboard at all five years ago. The Cato Institute, like several other new entrants to the Sweet Sixteen, went from being a negligible player in the cert. arena five years ago to being a consistent presence today. It is difficult to explain the dramatic boosts in several organizations’ tallies (e.g., Cato, the Center for Constitutional Jurisprudence, DRI) without imagining that, at some point in the last five years, they fundamentally reassessed how they could most effectively influence the Court.

On this, Chandler is absolutely correct. Given the unlikeliness that the Court will even hear a case, amicus briefs supporting certiorari can give a better “bang for the buck.”

And the results show. Since 2009, Cato has filed 51 amicus briefs supporting certiorari. Of those that have been already decided (as of this writing, nine cases are still pending), 12 were granted cert, or 28 percent.

Even in those cases where Cato filed and the Court eventually decided not to hear the case, 25 percent of the time the Court asked for a response from either the opposing party or the Solicitor General. Although the Court eventually declined to hear the cases, calling for a response indicates that the justices are taking more of an interest in the issue. It also means that, in the future, the justices may be more likely to hear a similar case.