Cato Did Remarkably Well at the Supreme Court

This was the first full term with the Court back at its “full strength” of nine justices, so all eyes were on Justice Neil Gorsuch to see how he would fit in — and how the Court’s internal dynamic and voting patterns would shift from what they were before Justice Antonin Scalia’s death in February 2016. While early reports, based on what turns out now to be unsubstantiated speculation, spoke of tensions between the newest justice and several of his colleagues, he quickly settled in and ended up writing many thoughtful opinions, including being assigned to write for the majority in several important cases (a rarity for a junior justice).


Cato filed in 15 merits cases on important issues ranging from free speech to separation of powers to criminal procedure. One of those got dismissed along the way because of legislative developments (United States v. Microsoft), leaving 14 opinions. (I’m including in that count two briefs filed by our project on criminal justice but not counting the one filed in Trump v. Hawaii because it was an immigration‐​policy brief which no Cato lawyers signed.) 


Improving on last year’s 9–4 performance, Cato achieved an 11–3 showing. Perhaps most importantly, we handily beat our biggest rivals, the federal government, which amassed an 11–15 record. (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 also effectively drew votes from across the judicial spectrum, winning 13 votes from Chief Justice John Roberts, 12 from Justice Elena Kagan, 11 from Justices Anthony Kennedy and Gorsuch, 9 from Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and 7 each from Justices Ruth Bader Ginsburg and Sonia Sotomayor.


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


Winning side (11): Masterpiece Cakeshop v. Colorado Civil Rights Commission; Carpenter v. United States; Murphy v. NCAA; Collins v. Virginia; NIFLA v. Becerra; Digital Realty Trust v. Somers; Minnesota Voters Alliance v. Mansky; Janus v. AFSCME Council 31; McCoy v. Louisiana; Lozman v. City of Riviera Beach; and Lucia v. SEC.


Losing side (3): Oil States Energy Services v. Greene’s Energy Group; Currier v. Virginia; and South Dakota v. Wayfair.


Next term doesn’t yet look like as exciting as this one was — though recall that several high‐​profile cases, including Masterpiece Cakeshop and the partisan‐​gerrymandering lawsuits — ended in fizzles. But still, come this fall we’ll see important cases on property rights, separation of powers, the nondelegation doctrine (!), and more. But of course before we get to next term, the summer will be occupied with the battle over the successor to Justice Kennedy, who announced his retirement hours after the Court announced its final opinions. 


I’ll have more to say on all this in future commentary, but if you’d like to learn more about these cases/​trends and the views of Cato‐​friendly scholars and lawyers, register for our 17th Annual Constitution Day Symposium, which will be held September 17. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume the parts of the summer not spent analyzing Kennedy, his possible successors, and the eventual nominee.