The U.S. Supreme Court returned to work in October with plenty of high-profile issues on its docket. Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, oversees analysis of the court’s last term in the latest edition of the Cato Supreme Court Review. During a recent visit to Raleigh, Shapiro briefed a local Federalist Society chapter. He also shared his analysis with Mitch Kokai for Carolina Journal Radio. (Head to http://www.carolinajournal.com/radio/ to find recent CJ Radio episodes.)
Kokai: The biggest change of the Supreme Court, in the past year, was in personnel. Tell us about the impact of new Associate Justice Neil Gorsuch.
Shapiro: Right. This term was kind of lower-key in terms of the cases decided, precisely because the absence of that ninth seat, after Justice [Antonin] Scalia’s passing and the delay in confirming Gorsuch or filling that seat, meant that the court took lower-profile cases — and fewer of them.
But, Gorsuch himself, he participated in 17 cases this term. Remarkably, he agreed with Justice [Clarence] Thomas on every one. We’ll see how long that continues. So far, he is what people expected, whether that was a good thing or a bad thing, but a stylish writer, a textualist. His first question on the bench was, “Why shouldn’t we just follow the plain meaning of the text?” I mean, it’s mind-blowing stuff here, but that theme continued in various writings.
And he jumped right in. New justices, typically, their first majority opinion that’s assigned is a unanimous one, and this was the same case here — kind of a forgettable technical case. But Justice Gorsuch took the opportunity to write separately, more than a dozen times beyond that, and indeed he wrote separately … in June alone, more than Justice [Elena] Kagan did in her first two terms on the bench.
Kokai: Wow. In addition to having Neil Gorsuch now on the bench, what were some of the other big cases from your vantage point?
Shapiro: Well, we’re in North Carolina. I might as well start off with Packingham v. North Carolina, a First Amendment case which asked whether sex offenders still maintain their First Amendment rights.
Now, sex offenders are an interesting class of felons. After they’ve served their time, or paid their dues, served their probation and whatever else, there are still certain restrictions on them. They can’t live within a certain distance of schools and other places where minors congregate. … In the digital age, states have tried to figure out how to apply those kinds of restrictions online. So, you know, you can’t go on Nickelodeon’s website or interact with kids in various other ways.
North Carolina actually had a much broader, kind of an outlier, sort of restriction for online access. And, the way that the law was written, not only could you not seek out kids to talk to or what have you, but, the way this law was written, it would bar you from accessing not only things like Facebook or Instagram, but potentially The New York Times website or WebMD or YouTube. Because those are sites where you create a profile and can interact with people in the comments, and under North Carolina statute, that was prohibited.
So, long story short, the Supreme Court unanimously struck down that North Carolina law. Not because states can’t restrict sex offenders online, but because they have to tailor it. And, indeed, sex offenders do have First Amendment rights.
Kokai: And, of course, a big deal here in North Carolina since it’s our own law. Other big cases that were on your mind?
Shapiro: Staying in North Carolina, there’s the redistricting case, Cooper [v. Harris]. These redistricting cases are really weird. You kind of apply the Goldilocks standard when race comes to bear. You can’t use race too much, but it turns out you can’t use race too little, with the Voting Rights Act.
In this case, North Carolina has to go back to the drawing board. … It’s really not kind of a groundbreaking ruling or standard. But, I don’t know, at a certain point the court is just going to have to throw up its hands and say, “We can’t police this anymore.”
At present, it really depends on how Justice [Anthony] Kennedy feels on any given day. And indeed [this] term we’re going to see, potentially, something revolutionary when it takes up a case involving a Wisconsin map — about partisan gerrymandering, no allegations of racial impropriety. But can you use a party designation too much? … It’ll all come down to Justice Kennedy again, and I imagine that this will be a fizzle. Because there really aren’t any manageable standards to apply in those kinds of cases.
Kokai: As you are analyzing everything that the court did during the past term, are there some trends that you noticed?
Shapiro: Not really. I mean, in general, every year Supreme Court reporters try to come up with some sort of theme for the term: “Oh, it turned to the left.” “It turned to the right.” “The court’s libertarian moment.” That was my favorite a few years ago.
But it’s not like the justices, when they’re on summer break, decide collectively or individually, “Oh, let’s move to the right this term. Oh, let’s move to. …” Even Justice Kennedy. He’s not saying, “Oh, I was too liberal this term. I need to be. …” No, it’s just a function of the amalgam of cases on their docket.
Now, the court does pick its own docket. So if it feels that the administrative agencies are going way too out of whack, either to the left or to the right, and they need to slap them down, well, you know, that’ll result in a certain set of results in a certain way.
And this term, in particular, the cases were lower-key. There were fewer of them. … In history, this is the lowest production of opinions after arguments: 62. So they’re doing a very good job of putting themselves out of business.
It’s a great job if you can get it, you know. You have the smartest young lawyers in America working for you. You get your summers off to go to Europe, and you only produce 62 opinions. I mean, it’s great. But anyway … the trend is: return to the status quo from before Scalia’s death.
So we had this weird interregnum of eight justices, where many cases were decided much more narrowly than they otherwise would be. Many cases simply weren’t taken because the court wanted to avoid having those ungainly 4-to-4 splits that don’t decide anything.
We’re waiting really for the next vacancy. Because, if, whenever Justice Kennedy decides to retire … or when Justice [Ruth Bader] Ginsberg departs the court, if it’s [Donald] Trump or another Republican president who makes that replacement, then the court will shift to the right and Chief Justice [John] Roberts will be the swing vote, as it were.
Kokai: I was going to ask you about the fact that we had the dog that didn’t bark, and that was that no justice decided to retire, which obviously means we’re going to have the same court coming back. … As the court does prepare to come back, what are some big cases that will be on its docket for the next term?
Shapiro: We’re going to go back to what we’ve been expecting the last few years, which is essentially a blockbuster term of the century. I think this is going to be our seventh one this decade, something like that. A number of big cases.
I mentioned the political gerrymandering [case] out of Wisconsin. The biggest criminal law case involves cell phone site location information. When you’re walking around, all of us have these phones in our pockets, and they’re pinging off towers. That information, that data, not who you talk to or your text messages, but where you are, is recorded by Verizon or T-Mobile or whoever you use. Do the police need a warrant to get at that information? Traditionally, if you’re analyzing it like, well, do you … speak loudly and people can overhear you? That’s all up for grabs in the public.
But it’s called the third-party doctrine because you’re giving this information to the third party, to your provider. But, you know, is there an expectation of privacy? … Is there an encryption? All of these sorts of issues. Will the police need a warrant? The court treads lightly in these tech cases, but this could be groundbreaking.