Cato Continues Win Streak at Supreme Court, Government Does Abysmally Yet Again

After several blockbuster terms, this year was supposed to give a bit of a breather to Supreme Court watchers – but of course all that changed in November, when RobertsCare and same-sex marriage landed back on the justices’ laps. Looking back on the term, we see a few trends: fewer unanimous rulings than the last few years; more results that experts classify as “liberal” than “conservative” (though that’s a function of the vagaries of the docket); the lockstep voting of the liberal bloc contrasted against the inscrutability of Chief Justice Roberts and Justice Kennedy.

But despite the highs and lows of the last few decision days, when the dust cleared, there was one aspect of continuity that’s particularly gratifying to me: Cato continued its winning streak in cases in which we filed amicus briefs. While not as dominating as last term, we still managed to pull off an 8-7 record. I’m also proud to note that we were the only organization in the country to support the challenges to both the IRS rule on the ACA and state marriage laws.

Here’s the breakdown, in the order the opinions arrived:

Winning side (8): North Carolina Board of Dental Examiners v. FTCYates v. United StatesElonis v. United StatesCity of Los Angeles v. PatelHorne v. U.S. Dept. of AgricultureJohnson v. United StatesObergefell v. HodgesMichigan v. EPA.

Losing side (7): Heien v. North CarolinaPerez v. Mortgage Bankers Assoc.; U.S. Dept. of Transportation v. Assoc. of American RailroadsEEOC v. Abercrombie & FitchWalker v. Sons of Confederate VeteransTexas Dept. of Housing v. Inclusive Communities ProjectKing v. Burwell

So it was a decent year for liberty, but obviously not without its disappointments – even beyond King v. Burwell. Still, we fared way better than the U.S. government, which compiled a 8-13 record. Curiously, for the first time ever, both Cato and the feds found ourselves on the winning side of one case: North Carolina Dental Examiners – but that was against a state government, so some Leviathan had to lose there.

UCLA law professor Adam Winkler, writing at Slate, attributes the government’s poor performance to its “conservative” positions on criminal justice. I don’t buy the ideological characterization – Justice Scalia often votes against the prosecution, so does that mean he’s a “liberal,” in contrast to “law-and-order conservative” Justice Kagan? – but the analysis is correct: many of the government losses, including a couple of unanimous ones, were in criminal cases. (Overcriminalization, anyone?)

But regardless – and regardless of its two victories on RobertsCare – this administration is easily the worst performer of any president before the Court in modern times (and probably ever, though it’s more relevant to compare Obama to Bush, Reagan, and Kennedy than, say, Benjamin Harrison). There are three basic reasons for this: expansive executive action (including overzealous prosecution), envelope-pushing legal theories, and Justice Kennedy acting like a libertarian on close cases.

I’m sure I’ll have more to say on this in future commentary, but if you’d like to learn more about all these cases/trends and the views of Cato-friendly scholars and lawyers, register for our 14th Annual Constitution Day Symposium, which will be held September 17 to review the term and look ahead to next year. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume much of my summer.

Update: This post was corrected after I recalculated the solicitor general’s won-loss record. I apparently had given the government slightly more credit than it deserved. Apologies.