confusion abounds in the case of the same-sex wedding baker

One of the most publicized cases of the 2017-2018 Supreme Court term was Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission. At issue was the petition by the owner of Masterpiece Cakeshop that his First Amendment rights had been violated when he was sanctioned by the Colorado Civil Rights Commission for refusing to bake a wedding cake for a gay couple’s reception. This petition was rejected by every court until the Supreme one, which in a 7-2 decision agreed with a small part of the petitioner’s Free Exercise claim and set aside the sanction of the Commission.

In a term beset with split decisions, this result seems at first like a resounding endorsement of the primacy of religious freedom above civil rights. The press about the decision overwhelming framed it as the Court siding with the baker, and the reaction to that formulation caused a lot of concern.

But that formulation was very misleading. The Court didn’t so much rule for the baker as it ruled against the Commission, essentially declaring a mistrial because of what it perceived as anti-religious animus in the record. Justice Kennedy, writing for the majority, explicitly punted on addressing the underlying tension between religious liberty and civil rights that formed the core of the baker’s suit.

What’s also interesting is how disunited the Court was in reaching a 7-2 decision. In all, five opinions were written for this case, only one a dissent. All the opinions attack each other from footnotes, and often the targets of those attacks were themselves written in footnotes. It looks like a lot of the deliberation was done through correspondence, and the contorted opinions suffer from the confusion. But a careful reading of them reveals a clumsily evolving jurisprudence around the Free Speech and Free Exercise clauses, as well as possible fault lines in the Court that could fracture in subsequent decisions where more is at stake. A future case that forces a direct confrontation of the tension between First Amendment and civil rights could be much tighter and more explosive.

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recent decision shows Brett Kavanaugh should not join Supreme Court

President Tump’s pick of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has ruffled some feathers. For example, my Senator Patty Murray is on record opposing his nomination on two grounds: first, that by association with Trump he would overturn Roe v Wade if occasion permitted; and second, due to rebukes he made against the Roberts Court which decided it, he opposes constitutional sanction of ObamaCare. Another complaint in wide circulation is how it is well understood (though somewhat debated) that he would support Congressional action to shield sitting Presidents from civil lawsuits.

While those concerns are valid as far as they go, I’m worried that focusing on them is unlikely to prevail in derailing his appointment since, quite frankly, it isn’t clear that they concern a plurality of Senators. I believe that Kavanaugh’s long record of jurisprudence is independently disqualifying outside those narrow political parameters and more attention should be paid to his overall legal philosophy. Luckily efforts are being made to obtain the fullness of his public record, though powerful Senators are also trying — in some cases hypocritically — to block an open review.

Thanks to reporting from the Intercept, I was made aware of a fairly shocking decision that Kavanaugh handed down — on the very day Trump announced him as his pick — from the three-judge Appeals Court on which he sat. I think that decision is a telling vignette into Kavanaugh’s current judicial philosophy and temperament. It casts serious doubt on his candidacy for the highest court to say nothing of the risk it reveals to government transparency law. I think emphasizing this style of failing will be more salient in openly evaluating Kavanaugh. My analysis follows.

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