After a bruising and highly partisan confirmation fight, Justice Brett Kavanaugh took his seat on the Court as the term began. Replacing the predictably unpredictable Justice Anthony Kennedy, Justice Kavanaugh seemed poised to move the Court in a decidedly rightward direction. But looks can be deceiving. In a few high-stakes cases and, especially, petition rejections and other votes on the “shadow docket” (as opposed to fully briefed and argued cases), Kavanaugh demonstrated a dynamic – not wholly originalist/textualist or “conservative” – jurisprudence. Notably, he was the swing vote to allow a questionable antitrust lawsuit to proceed against Apple.
And Kavanaugh has tried to keep a low and agreeable profile, easily becoming the justice most often in the majority (over 90 percent of the time). He also showed how different he was from his fellow Trump appointee Justice Neil Gorsuch, who is rapidly becoming a libertarian darling. Kavanaugh actually aligned about as much with Justice Elena Kagan as with Gorsuch.
While Chief Justice John Roberts recently has become, by some metrics, the swingiest member of the bench, there could in future be a reinvigorated conservative block that comes to dominate the Court – especially if President Trump is given the opportunity to fill another seat on the bench. Yet for all the doomsday prophesying from progressive court-watchers, eight cases saw one “conservative” justice cast the deciding vote alongside his “liberal” colleagues (four of them involved Justice Gorsuch, in criminal procedure cases). Indeed, of the twenty 5-4 decisions this term, only seven had a “conventional” split of conservatives over liberals. In a more typical term, with more high-profile cases with ideological salience, perhaps we’ll see the conservative bloc flex its muscle, but not this year.
Cato filed amicus briefs in 16 cases that the Court heard in the 2018-2019 term, including whether Congress may delegate to the Attorney General the authority to modify sex offender registration requirements (implicating the nondelegation doctrine), to the validity of a state law that refused liquor licenses to people failing to satisfy in-state residency requirements (in potential conflict with the dormant Commerce Clause). Mirroring last year’s 11-3 win-loss count, Cato’s side prevailed at a 12-4 clip.
Overall, the term had its fair share of winners and losers. Among the winners were American Legion v. American Humanist Association and Knick v. Township of Scott. In the former, a seven-justice majority held that a WWI memorial cross in a municipal park did not violate the Establishment Clause (“separation of church and state” in not wholly accurate layman’s terms). In the latter, the Court ruled that challenges to state or local eminent domain actions could be brought in federal court, without claimants first having to exhaust their state-court options. Both were clear victories for liberty and speak to the two newest justices’ commitment to our constitutional order. Among the losers was Gamble v. United States, in which the Court upheld the “separate sovereigns” doctrine that allows both state and federal courts to convict an individual for the same underlying action.
Here’s the full breakdown, in the order the opinions arrived:
Winning side (12): Weyerhaeuser Company v. U.S. Fish & Wildlife Service; Timbs v. Indiana; Garza v. Idaho; Frank v. Gaos; Merck Sharp & Dohme Corp. v. Albrecht; Return Mail, Inc. v. U.S. Postal Service; Manhattan Community Access Corp. v. Halleck; American Legion v. American Humanist Association; Knick v. Township of Scott; Iancu v. Brunetti; Tennessee Wine & Spirit Retailers Association v. Thomas; Kisor v. Wilkie.
Losing side (4): New Prime, Inc. v. Oliveira; Gamble v. United States; Gundy v. United States; Mitchell v. Wisconsin.
Next term is shaping up to be an exciting one. This fall, the Supreme Court will hear cases striking at the heart of the culture war – and others that, though less controversial, are of great national import. The Court will decide whether to apply to the states’ the Sixth Amendment’s guarantee of a unanimous jury verdict for criminal convictions, if Title VII of the Civil Rights Act protects transgender and homosexual employees from gender- and sexual-orientation-based discrimination, and the constitutionality of New York City’s ban on transporting locked and unloaded handguns. Unfortunately, the Court declined to take up a case that could have limited the president’s congressionally delegated power to impose tariffs in the oft-flimsy name of “national security.” But in light of Justice Samuel Alito’s concurrence in Gundy – indicating a willingness to join his dissenting colleagues in reexamining the Court’s expansive reading of Congress’s delegation of legislative power – we’re hopeful that the Court changes course at some point. But for now, we must continue to wait.
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, register for our 18th 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, the editing of which has now passed to my colleague Trevor Burrus as I rediscover what it’s like to use August for vacation and other summer fun rather than checking citations and turning galleys.