Constitution Day also marks the release of the Cato Supreme Court Review, an annual critique of the Court’s most important decisions from the term just ended plus discussion about the upcoming term. The Review is the first such journal to be released every year. As Ilya Shapiro, Cato vice president and director of the Robert A. Levy Center for Constitutional Studies, explains in the foreword, the Cato Supreme Court Review is also “the only [such journal] that approaches its task from a classical liberal, Madisonian perspective, grounded in the nation’s first principles, liberty through constitutional government.”
Among the contributors to this year’s Review is Bradley A. Smith, former chair of the Federal Election Commission, who explains the implications and reasoning behind Americans for Prosperity Foundation v. Bonta. California had required nonprofit organizations to disclose the identity of their donors in their state tax returns. This requirement was a thinly veiled attempt to enable harassment and retaliation against donors to controversial political advocacy groups, especially libertarian and conservative organizations. The policy was originally imposed by California’s then-attorney general Kamala Harris, since elected vice president.
The Supreme Court sided with the plaintiffs in a 6 to 3 ruling, holding that California was violating the constitutional rights to free speech and association, including anonymous speech and nonpublic association, in what Smith considers “arguably the most important decision on the rights of privacy and association in over 60 years.”
Another key case of the past term concerned the nature of federalism and state autonomy, in particular the degree to which states are entitled to control their own election process. Derek T. Muller writes in this year’s Review about Brnovich v. Democratic National Committee, in which Democrats challenged Arizona’s changes to election laws banning so-called “ballot harvesting” as well as requiring all voters to vote in their own precincts. Arizona’s attorney general Mark Brnovich is himself a past contributor to the Review and a speaker at the Constitution Day symposium.
“We are in a time of public skepticism over elections,” explains Muller. “The losing side doubts the fairness of the outcome, attributing the loss to suppression, fraud, foreign influence, or late-breaking changes to laws—some ‘true reason’ outside the legitimate political process why a preferred candidate failed.” Such was the case in Brnovich, in which relatively mundane changes to election law, reflecting common practices in many other states, were challenged as violating the Voting Rights Act due to claimed racially discriminatory intent. Six justices on the Supreme Court disagreed, ruling in Arizona’s favor. Mueller observes that “I think it is fair to say that Brnovich is the latest in a line of cases suggesting that the federal courts should play a smaller role in the patrolling of how states administer elections.”
Each year’s Constitution Day symposium also features the Annual B. Kenneth Simon Lecture, a keynote address offered by a distinguished scholar or public intellectual and printed in the next year’s Review. Last year’s speaker was Judge Don R. Willett of the U.S. Court of Appeals for the Fifth Circuit, who addressed civic literacy.
This year’s Simon lecturer was Rachel E. Barkow of New York University School of Law, who (among her many accomplishments) clerked for Justice Antonin Scalia as his so-called counter-clerk, a progressive-minded devil’s advocate to point out any faults resulting from partisan bias, and served as an appointee by President Obama on the U.S. Sentencing Commission. Barkow addressed America’s broken criminal justice system and how the Supreme Court has contributed to mass incarceration.
