Leading Scholars Review Court’s Major Cases

Supreme Court Review takes stock of the 2017–18 term
November/​December 2018 • Policy Report

Cato Supreme Court Review, released every year at Cato’s Constitution Day symposium, asks leading scholars and practitioners of the law to weigh in on the major cases of the concluded term. Released just three months after the end of each term, this year’s Cato Supreme Court Review is the 11th and last edition under the editorship of Ilya Shapiro before he passes the reins to Trevor Burrus.

With high drama under way in the Senate Judiciary Committee over the possible successor to Justice Anthony Kennedy, the 2017–2018 term revealed a remarkable lack of “swing” from the man long seen as the Court’s swing vote. In his last term before announcing his retirement, in no cases did Justice Kennedy join the Court’s four liberals to produce a 5–4 ruling of the sort that was made famous in the landmark gay‐​rights cases.

It was a good year for Cato’s amicus curiae (“friend of the court”) briefs. Cato scholars filed 15 such briefs in 2017–2018. In one case (United States v. Microsoft), legislative action made the case moot before a ruling. In the 14 remaining cases, Cato was on the winning side in 11. This performance improves on last year’s record, when Cato’s briefs were on the winning side in 9 cases and on the losing side in 4.

Among these rulings was Minnesota Voters Alliance v. Mansky, where the Court struck down a state law that broadly prohibited “political” apparel and messages worn by voters at the polling place. This year’s Review includes an argument that the ruling did not go nearly far enough from Rodney A. Smolla, dean and professor of law at Widener University Delaware Law School. Instead of striking down the law as overbroad, Smolla contends that the Court should have overturned its past precedents upholding laws even as applied to narrower electioneering speech like buttons and T‐​shirts that advocate particular candidates.

In another important victory for federalism and personal freedom, the Court struck down a federal law requiring most states to prohibit sports gambling in Murphy v. NCAA (retitled from Christie v. NCAA, under which Cato’s amicus brief was filed). For this year’s Review, Arizona Attorney General Mark Brnovich offered his thoughts on why this decision was overdue, drawing on his experience as Arizona’s chief gambling regulator prior to his election as attorney general. See also page 9 for excerpts of remarks at Cato’s Constitution Day symposium.

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