Ilya Shapiro - Cato Supreme Court Review, 2012-2013

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CATO
SUPREME COURT
REVIEW
20122013

CATO
SUPREME COURT
REVIEW
20122013

ROGER PILON Publisher	ILYA SHAPIRO Editor in Chief
TREVOR BURRUS Associate Editor	ROBERT A. LEVY Associate Editor
TIMOTHY LYNCH Associate Editor	WALTER OLSON Associate Editor

Editorial Board

Jonathan H. Adler Case Western Reserve University	Richard A. Epstein New York University	Mark K. Moller DePaul University
Lynn A. Baker University of Texas	Elizabeth Price Foley Florida International University	David G. Post Temple University
Randy E. Barnett Georgetown University	Nicole Stelle Garnett University of Notre Dame	Saikrishna B. Prakash University of San Diego
David E. Bernstein George Mason University	Marci A. Hamilton Yeshiva University	Adam C. Pritchard University of Michigan
Lillian R. BeVier University of Virginia	James Huffman Lewis & Clark College	Glenn Harlan Reynolds University of Tennessee
G. Marcus Cole Stanford University	Gary Lawson Boston University	Nicholas Quinn Rosenkranz Georgetown University
James W. Ely Jr. Vanderbilt University	David N. Mayer Capital University	Ilya Somin George Mason University

THE CATO SUPREME COURT REVIEW (ISBN 978-1-939709-08-0) is published annually at the close of each Supreme Court term by the Cato Institute, 1000 Massachusetts Ave., N.W.,Washington, D.C. 20001-5403.

CORRESPONDENCE. Correspondence regarding subscriptions, changes of address, procurement of back issues, advertising and marketing matters, and so forth, should be addressed to:

Publications Department
The Cato Institute
1000 Massachusetts Ave., N.W.
Washington, D.C. 20001

All other correspondence, including requests to quote or reproduce material, should be addressed to the editor.

CITATIONS: Citation to this volume of the Review should conform to the following style: 2012-2013 Cato Sup. Ct. Rev. (2013).

DISCLAIMER. The views expressed by the authors of the articles are their own and are not attributable to the editor, the editorial board, or the Cato Institute.

INTERNET ADDRESS. Articles from past editions are available to the general public, free of charge, at www.cato.org/pubs/scr.

Copyright 2013 by the Cato Institute.
All rights reserved.

ISBN 978-1-939709-08-0

Printed in the United States of America.

Cato Institute
1000 Massachusetts Ave., N.W.
Washington, D.C. 20001
www.cato.org

Contents

Roger Pilon

Ilya Shapiro

ANNUAL B. KENNETH SIMON LECTURE

Paul D. Clement

ARTICLES

EQUALITY UNDER THE LAW

Shelby County v. Holder:
The Restoration of Constitutional Order

William S. Consovoy and Thomas R. McCarthy

Fisher v. University of Texas:
The Court (Belatedly) Attempts to Invoke Reason and Principle

Gail Heriot

Elizabeth B. Wydra

Ernest A. Young and Erin C. Blondel

FRONTIERS OF INTERNATIONAL LAW

Kiobel v. Royal Dutch Petroleum:
The Alien Tort Statutes Jurisdictional Universalism in Retreat

Kenneth Anderson

WHO GUARDS THE GUARDIANS?

Bailey v. United States:
Another Win for that Doggone Fourth Amendment

Daniel Epps

PROPERTY RIGHTS NEW AND OLD

Two Steps Forward for the Poor Relation of Constitutional Law:
Koontz, Arkansas Game & Fish, and the Future of the Takings Clause

Ilya Somin

Joshua D. Hawley

THE BRAVE NEW WORLD OF PATENT LAW

Gregory Dolin

David S. Olson

CLASS ACTIONS AND OTHER BUSINESS REGULATIONS

Common Problems for the Common Answers Test:
Class Certification in Amgen and Comcast

Mark Moller

Andrew M. Grossman

THE TERMS LONE FIRST AMENDMENT CASE

Speech, Subsidies, and Traditions:
AID v. AOSI and the First Amendment

Charles W. Rocky Rhodes

NEXT YEAR

Howard J. Bashman

Roger Pilon

The Cato Institutes Center for Constitutional Studies is pleased to publish this 12th volume of the Cato Supreme Court Review, an annual critique of the Courts most important decisions from the term just ended, plus a look at the term aheadall from a classical Madisonian perspective, grounded in the nations first principles, liberty through limited government. We release this volume each year at Catos annual Constitution Day conference. And each year in this space I discuss briefly a theme that seemed to emerge from the Courts term or from the larger setting in which the term unfolded.

Clearly, the theme that ran through the major decisions the Court handed down during its final days was equal protection. The long-awaited decision in Fisher v. University of Texas at Austin was expected by many to put an end at last to the use of racial preferences in public higher-education admissions decisions. Instead, the Court vacated the Fifth Circuits decision upholding the universitys affirmative action scheme and remanded the case for further proceedings under scrutiny more strict than the lower courts had employed.

In another closely watched case with roots in the civil rights movement of the 1960s, Shelby County v. Holder, the Court found the formula for determining which state and local governments must comply with the preclearance requirements of the 1965 Voting Rights Act so out of date as to be unconstitutional, thus raising serious questions about equal protection as it concerns not only voters but state sovereignty as well.

Finally, equal protection was squarely before the Court in a complex pair of same-sex marriage cases the Court decided on its last day, United States v. Windsor and Hollingsworth v. Perry, although the Court ducked the issue in Perry, holding that the petitioners had no standing to defend Californias Proposition 8, which defined marriage as between one man and one woman, while in Windsor the Court found Congresss similar effort to define marriage in the Defense of Marriage Act unconstitutional on federalism, due process, and equal protection grounds.

Equal Protections Difficult History

Over the years the Court has had no little difficulty deciding cases on the basis of the equal protection principle, often conflating equal protection and due process. Witness Plessy v. Ferguson and Brown v. Board of Education, Bowers v. Hardwick and Lawrence v. Texas, and especially class-of-one cases like Engquist v. Oregon Department of Agriculture, where the Court came up short. Thats not surprising, first because equal protection as such is merely a formal principle, and second because we got off to a bad start with the idea, not only at the outset but even after we incorporated it at last in our constitutional firmament.

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