A Supreme Court “libertarian moment”?

by Walter Olson on July 5, 2013

And with Justice Anthony Kennedy as the pivot? It just might have happened this term, or so I conclude in a new Cato post.

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A libertarian Supreme Court? (If only) - Overlawyered
07.31.13 at 9:00 am


1 Libertarian Book Club 07.05.13 at 7:58 pm

Was the comparison made only with Kennedy? I am curious how things look when examining the record of Thomas.

2 Walter Olson 07.05.13 at 8:27 pm

Cato differed from Kennedy three times, from Scalia four times, and from Thomas five times among the 18 cases. While picking up Scalia and Thomas on Jardines, Cato lost both of them on AID and Windsor and additionally lost Thomas on Bailey. Of the three cases where Cato’s position did not prevail, it lost Kennedy, Scalia and Thomas twice each, but not on the same cases: it lost Kennedy on Salinas and Kebodeaux, while losing Scalia and Thomas on Salinas and City of Arlington.

3 Libertarian Book Club 07.05.13 at 9:26 pm

Interesting! Thanks.

4 jdgalt 07.05.13 at 9:29 pm

If the police-dog-sniff case went Cato’s way, Cato took the wrong side.

5 Walter Olson 07.05.13 at 9:51 pm

Cato argued in Jardines that a police dog sniff is a search, a position the Court agreed with 5-4 with a majority consisting of Scalia writing, Thomas, Ginsburg, Sotomayor, and Kagan.

6 Demosthenes 07.06.13 at 1:56 am

Eeeeeek. This is a little bit fishy. You probably agreed with the JUDGMENT of Kennedy in all those cases but almost certainly not his reasoning. On that, Cato still ought to be more sympathetic to Scalia and Thomas.

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