The Cato Institute's Center for Constitutional Studies is pleased to publish this seventh volume of the Cato Supreme Court Review, an annual critique of the Court's most important decisions from the term just ended, plus a look at the cases ahead—all from a classical Madisonian perspective, grounded in the nation's first principles, liberty and limited government. We release this volume each year at Cato's annual Constitution Day conference. And each year in this space I discuss briefly a theme that seemed to emerge from the Court's term or from the larger setting in which the term unfolded.
This was the third term of the Roberts Court—the second full term with both Chief Justice John Roberts and Justice Samuel Alito— but still it appears too early to place any clear stamp on its character. At term's end, Court-watchers were quick to note that the Court handed down only 67 merits opinions, the fewest in over half a century. And unlike in the previous term when the Court divided 5–4 in 24 cases, fully one-third of its docket, in this term it divided 5–4 in only 11 cases—although 3 other decisions, absent recusals, would likely have been 5–4. It would seem, therefore, that the Chief Justice was gradually moving the Court toward speaking with one voice, a hope he had expressed during his 2005 Senate confirmation hearings. But when looked at from the other end, that hope receded, for only 20 percent of the cases were decided by a fully unanimous Court (no dissents or concurrences), which contrasts with 25 percent in the previous term, and 45 percent in the term before that. Clearly, the court is still divided. And the divide has deep roots.
At least three of those 5–4 decisions—Kennedy v. Louisiana, District of Columbia v. Heller, and Boumediene v. Bush—take us to constitutional first principles—to basic questions of political and legal theory