Even in a “Slow” Year, Cato Continues Its Winning Ways at the Supreme Court

If the death of Justice Antonin Scalia overshadowed the 2015–16 Supreme Court term, the extended absence of his successor and the subsequent battle (including eliminating the judicial filibuster) over the appointment of Neil Gorsuch dominated Court news for 2016. Indeed, Scalia’s absence was felt more in the the lower quality and quantity of cases that the Court took up: The justices ended up deciding 62 cases after argument—the fewest ever—none of which would’ve made it into the “greatest hits” in recent years given the six or seven consecutive “terms of the century.” And recall that the Trump Department of Education withdrew a 2015 guidance letter construing Title IX to require schools to treat transgender students consistent with their expressed gender identity, removing the most politically charged case from the Court’s already muted docket. 


In any event, Justice Gorsuch took his seat on the bench in April, and his initial opinions showcase his promised readable style and principled textualist approach to statutory interpretation. With Justice Anthony Kennedy refraining from announcing his rumored retirement—though we could get a telegram from Salzburg this summer—Court‐​watchers will likely have to wait another year for the first nomination in a “post‐​nuclear” world.


Cato still filed in 13 merits cases on important issues ranging from separation of powers, free speech (both commercial and disparaging), and property rights. Improving on a 4–4 performance in an unusual term last year—where we still beat the government handily—Cato achieved a strong 9–4 showing, besting the combined Obama‐​Trump effort of 8–12. Cato also effectively drew votes from across the judicial spectrum, winning 10 votes from both Chief Justice John Roberts and Justice Elena Kagan, 9 votes from Justice Stephen Breyer, and 8 votes each from Justices Kennedy, Samuel Alito, and Ruth Bader Ginsburg.


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


Winning side (9): NLRB v. SW General, Inc; Expressions Hair Design v. Schneiderman; Nelson v. Colorado; Bank of America Corp. v. Miami; Kokesh v. SEC; Packingham v. North Carolina; Matal v. Tam; Lee v. Unites States; Trinity Lutheran Church v. Comer.


Losing side (4): Bravo‐​Fernandez v. United States; Salman v. United States; Turner v. United States; Murr v. Wisconsin.


Donald Trump’s inauguration also marked the official end of the Obama era at the Supreme Court. A pair of unanimous losses brought the administration’s total to 48, more than a quarter of all cases argued by his administration and approximately 50% higher than both the Bush and Clinton teams. His total winning percentage of under 47% was also significantly lower than both of his predecessors, who finished at 60% and 63% respectively. Of course, the Trump administration is off to an even less auspicious start, with a 1–9 record and 5 unanimous losses in just half a term. (The apportionment of cases on either side of the inauguration may be somewhat artificial, given that most or all of these relatively low‐​profile Supreme Court arguments were handled by career lawyers, not political appointees, and the government’s position didn’t change with the change of administration.)


This fall promises another blockbuster term, with the travel ban, Fourth Amendment protection of cellphone location data, same‐​sex wedding vendors, and likely the fate of mandatory union dues headlining the docket.


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 16th Annual Constitution Day Symposium, which will be held September 18. 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.