While I wait for better-informed commentary than mine on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, I wanted to make two observations.
First, I strongly suspect it’s going to be overinterpreted, by supporters and opponents alike. Sometimes a cigar is just a cigar.
Second, do you notice how neatly it supports the point I made last week that the idea of a 4-4 partisan/ideological split in the Court is greatly exaggerated? There’s a better argument to be made that there’s a 2-2-5 split in the Court with Thomas and Alito holding a conservative hard line and Ginsburg and Sotomayor holding a progressive hard line just as determinedly. But even that ignores that there were two other Supreme Court decisions rendered today, one 9-0 and the other 6-3.
You probably won’t find a better commentary than this, Eugene Volokh, The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved.
Headlines in your future:
Don’t let them eat cake.
Supreme Court takes the cake.
SCOTUS opinion no cakewalk.
I understand that no one on either side of the debate will be happy, but IMO this is the correct judgment.
PD:
How about
Frosted!
Lol, those are funny.
Volokh has another piece out and I think it’s quite good:
https://reason.com/volokh/2018/06/04/the-courts-religious-discrimination-reas
To your first point, wait for people who know what they are talking about. And that wouldn’t be me. Calling PD, calling PD…….
But it strikes me as odd that they kept the decision, from a legal issue standpoint, so narrow. Odd. Methinks that might mean they really couldn’t get a coherent worldview on the broader issues. So they punted to the narrow issue at hand.
@Guarneri, I didn’t read the opinion, nor do I intend to. Some uninformed information:
1. Kennedy is not a good writer, and frequently his opinions are not very predictive of future cases or anybody else’s specific views on the Court.
2. Roberts made a big deal when he was named Chief Justice about wanting fewer cases with close voting splits. Smaller decisions mean greater unanimity.
3. Volokh is a good indicator of mainstream Constitutional views on the right, and he thinks that in these types of cases “photographers, wedding singers, and the like would win, but bakers, limousine drivers, and the like would lose.” In other words, all occupational tasks will me measured in terms of the degree of expressive content and judged accordingly. There may be many cases in the future.
Seems to me that Kennedy was trying to paper over how many of the things he said in Obergefell were wrong without reversing himself.