A Term of Striking Unanimity

November/​December 2014 • Policy Report

Despite certain predictable ideological divisions, the latest Supreme Court term recorded a level of agreement not seen since the 1940s. Nearly two‐​thirds of the Court’s decisions were unanimous, the highest percentage in seven decades. Nevertheless, the 2013–2014 term involved enough friction to provoke a day’s worth of discussion at the Cato Institute’s Annual Constitution Day Conference. This year marked the 13th and, as always, it coincided with the release of the new Cato Supreme Court Review.

The conference, “The Supreme Court: Past and Prologue — A Look at the October 2013 and 2014 Terms,” featured leading legal experts discussing the most pertinent cases of the last term and what we can expect in the near future from the Supreme Court. Nadine Strossen, former president of the American Civil Liberties Union and a professor at New York Law School, examined McCutcheon v. FEC from her perspective as a self‐​proclaimed “First Amendment absolutist.” The case struck down aggregate contribution limits to federal candidates and committees, a decision that Strossen said has been “incredibly maligned and misunderstood.” She continued, “Many of us believe that [what] democracy is all about is that you vote for a candidate and you give money to a candidate because you want that person to share and be responsive to your concerns.

That’s not corruption; that is democracy.” With characteristic wit, P. J. O’Rourke, America’s leading political satirist and an H. L. Mencken research fellow at Cato, discussed an Ohio election law that makes it a crime to lie about politicians. Joined by O’Rourke, the Institute filed an amicus brief in the resulting case — which, the humorist said, reminded the Court of the importance of “truthiness” in American civics, as well as the role of satire and spin more broadly. Politico called it “the most entertaining — if not the greatest — legal brief in American history.”

Nicholas Quinn Rosenkranz, a professor at Georgetown University Law Center and a senior fellow at the Cato Institute, addressed Bond v. United States — “that typical case of federalism, adultery, and chemical weapons,” as Review editor‐​in‐​chief Ilya Shapiro described it. The case involved a defendant being brought up, not on charges of assault, but on violating the international chemicalweapons treaty. This was the second time the case has come before the Court and the second time that the government’s position lost unanimously. Rosenkranz’s scholarship planted the seed for the case, which challenged the idea that the federal government could gain extra powers — beyond those constitutionally enumerated — according to a duly ratified treaty.

The day closed with the annual B. Kenneth Simon Lecture, during which a distinguished legal scholar presents a paper that will be included in the following year’s Cato Supreme Court Review. This September, the Hon. Diane Sykes — a federal judge on the U.S. Court of Appeals for the Seventh Circuit and a former justice of the Wisconsin Supreme Court — criticized judicial minimalism, a legal approach that avoids broad rules and abstract theories. (See page 9.) Minimalism, she said, is both “unworkable and unwise.” “The Court’s legitimacy arises from the source of its authority — which is, of course, the Constitution — and is best preserved by adhering to decision methods that neither expand, nor contract, but legitimize the power of judicial review,” Sykes concluded. “The Court’s primary duty, in short, is not to minimize its role or avoid friction with the political branches, but to try as best it can to get the Constitution right.