“The Supreme Court’s Libertarian Moment?”

Although my colleague Ilya Shapiro is off on his honeymoon, he published a piece in the Huffington Post just before the holiday speculating that the Supreme Court is having what you might call a libertarian moment. Some evidence of that: “the Cato Institute is the only organization to have filed briefs supporting the winning side in each of the three big cases” that ended the term: Fisher on affirmative action, Shelby County on voting rights, and Windsor on the Defense of Marriage Act. Ilya argues that the common thread of the three decisions is a principled commitment to equality under the law, which leads to skepticism toward identity-based classifications by government. What’s more, Cato “went 15-3 on the year,” truly an extraordinary success rate for any amicus program. 

A footnote: Some have asked whether the very high win rate of Cato positions this term might have something to do with the tendency of Justice Anthony Kennedy, the swing vote in many split cases, to take positions that coincide with Cato’s. I asked Cato legal analyst Stephen Richer to look into it and this is what he found: 

  • In our 15 wins, we had Kennedy on our side in all but 1 case (Florida v. Jardines).
  • In our 3 losses, we only had Kennedy on our side once (Arlington v. FCC).

That means that we were 14 wins and 1 loss when we had Kennedy on our side.  And we were 1 win and 2 losses when we didn’t have Kennedy on our side.

Put differently, a hypothesis that Cato’s position wins when Justice Kennedy agrees with it, but loses if he disagrees, correctly explains 16 of the 18 cases and fails to explain only two. Florida v. Jardines is the case on whether a police dog sniff constitutes a search, and Arlington v. FCC is the case on whether federal agencies are owed judicial deference in determining the scope of their own jurisdiction. 

P.S. A reader asks how Justices Thomas and Scalia compare. In brief: Cato differed from Kennedy three times, from Scalia four times, and from Thomas five times among the 18 cases. While picking up Scalia and Thomas on Jardines, Cato lost both of them on AID and Windsor and additionally lost Thomas on Bailey. Of the three cases where Cato’s position did not prevail, it lost Kennedy, Scalia and Thomas twice each, but not on the same cases: it lost Kennedy on Salinas and Kebodeaux, while losing Scalia and Thomas on Salinas and City of Arlington.