July 5, 2013 4:26PM # “The Supreme Court’s Libertarian Moment?” By [Walter Olson](https://www.cato.org/people/walter-olson) --- SHARE Although my colleague Ilya Shapiro is off on his honeymoon, he published a [piece in the *Huffington Post*](http://www.huffingtonpost.com/ilya-shapiro/the-supreme-courts-libert_b_3536534.html) 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*](https://www.cato.org/publications/commentary/florida-v-jardines-bolstering-fourth-amendment) is the case on whether a police dog sniff constitutes a search, and [*Arlington v. FCC*](https://www.cato.org/blog/supreme-court-errs-giving-agencies-power-define-their-own-power) 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*. ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).