A Supreme Court Term for the Ages Signals the Start of a New Era

October term 2017, while it rolled out in fits and starts, ended up giving a lot to conservatives and libertarians. But we’re just getting started.
June 28, 2018 • Commentary
This article appeared on the Washington Examiner on June 28, 2018.

It was a Supreme Court term for the ages. I don’t know if I would necessarily count any of the rulings as ones we’ll look back on as setting huge precedents — unlike, say, Heller (Second Amendment), Citizens United (campaign finance), Shelby County (voting rights), and Obergefell(same‐​sex marriage) — but as a whole it was a year where a new court came together. To be sure, there were several “big” cases, like Murphy v. NCAA (sports gambling/​federalism), South Dakota v. Wayfair (state sales tax on e‐​commerce), and NIFLA v. Becerra (compelled speech in crisis pregnancy centers).

But those won’t be rolling off layman tongues. Even Trump v. Hawaii (travel ban 3.0), while launching millions of flame wars on Twitter, doesn’t break new ground given the broad discretion that Congress gives the president on immigration law and the deference courts (rightly) give the executive on matters of national security. Recall that most experts were predicting this wouldn’t even be a 5–4 split — and it really wasn’t, because Justices Stephen Breyer, joined by Elena Kagan, merely filed a technocratic opinion about needing more evidence before really being able to decide, declining to enlist in the judicial #Resistance that only garnered two votes (Justices Sonia Sotomayor and Ruth Bader Ginsburg).

The cases with arguably the greatest potential for changing the legal landscape, Masterpiece Cakeshop and partisan gerrymandering, fizzled. Heck, probably the most long‐​lasting rulings from a practical purpose were Carpenter v. United States (police need a warrant to collect cellphone location data) and Janus v. American Federation of State, County and Municipal Employees (public‐​sector unions can’t charge fees to nonmembers).

So there was a lot going on, in many fields of law, but it seemed that the Supreme Court was really playing second‐​fiddle to whatever was happening in President Trump’s Twitter feed and the political world.

Until Wednesday, the last day of the term (and also my birthday). Not only did the Supreme Court hand down Janus— provoking paroxysmal fits among the woke anti‐​authoritarians who can’t get enough of forcing people to financially support things they don’t agree with — but, three hours later, Justice Anthony Kennedy announced his retirement.

Kennedy has long been the Supreme Court’s “swing” vote (though he hates that term) and thus is most often in the majority in those 5–4 cases that split along conventional ideological lines. Well, this term there were 19 such hotly split decisions, just under 30 percent of the total (a bit high but within modern norms). Of those 19 decisions, 15 featured Kennedy joining the four “conservatives” and none had Kennedy joining the four “liberals.” (Two of them did have Chief Justice John Roberts joining the liberal bloc.) That simply hasn’t happened in the 13 years since Justice Samuel Alito replaced Justice Sandra Day O’Connor to put Kennedy in his vaunted role as the man in the middle.

So yeah, while it’s simplistic to characterize particular terms as liberal, conservative, or anything else — remember, there was even a legal “libertarian moment” when Cato went 15–3 — this term gave progressives plenty of heartburn.

And now it should only get worse for them. Assuming Trump follows through on his promise to pick from his fabulous list of terrific judges— they really are the best, believe me (no, they actually are solid) — and Senate Majority Leader Mitch McConnell shepherds that nominee through the Senate — neither Sens. Susan Collins, R‐​Maine, nor Lisa Murkowski, R‐​Alaska, have yet wavered on judicial votes — the confirmation of Justice Gorsuch II (constitutional boogaloo) will mean that Chief Justice John Roberts becomes the median vote.

I don’t want to oversell that point. Roberts will then have even more incentive to indulge his minimalist fantasies to lead the Supreme Court from the squishy commanding heights. But Roberts, incrementalist judicial restraint and all, is a far surer vote for conservatives (not necessarily libertarians) than Kennedy ever was. He even agreed with Cato more than any other justice this and last year!

Trump, who wouldn’t have won the election had it not been for the Scalia vacancy, would then ensure that his legacy (assuming North Korea doesn’t blow us up) will be in the judicial realm. Already having appointed one‐​eighth of the federal appellate judiciary in less than 18 months, he will have had back‐​to‐​back lifetime appointments to the Supreme Court. And Justices Ginsburg (age 85), Breyer (80 in August), and Thomas (70 and by some accounts getting restless) aren’t getting any younger.

In short, October term 2017, while it rolled out in fits and starts, ended up giving a lot to conservatives and libertarians. But we’re just getting started.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute