"The Supreme Court on Friday agreed to hear its first abortion case since President Trump’s appointments of two justices."

Adam Liptak reports (at the NYT).

The case [June Medical Services v. Gee] concerns a Louisiana law that its opponents say would leave the state with only one doctor in a single clinic authorized to provide abortions. And it is very likely to yield an unusually telling decision because, in 2016, the court struck down an essentially identical Texas law.

The vote in the 2016 decision [Whole Woman’s Health v. Hellerstedt] was 5 to 3, with Justice Anthony M. Kennedy joining the court’s four-member liberal wing to form a majority.... The federal appeals court in New Orleans upheld the Louisiana law last year notwithstanding the 2016 decision....

There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote [for the majority in 2016]. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40....

“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority [for the Court of Appeals in the new case]. In particular, he wrote, “the admitting-privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”...

The new case will give us a chance to see the effect of replacing Justice Kennedy with Brett Kavanaugh. Kennedy was the deciding vote maintaining abortion rights. It's possible that this case won't do much, because it could be easily decided by saying the answer is determined by Hellerstedt. But perhaps the newly hardened conservative bloc will display its heft and do something conspicuously anti-abortion.

You can speculate about which political party is helped or hurt in the next election by the various possible outcomes.

Key facts: the Supreme Court chose to take on this case and the court below upheld the state's restriction on abortion. The Court had to take the case to keep it in line with Hellerstedt, so taking the case doesn't show enthusiasm for doing something striking.

NOTE: I rewrote the last sentence about a minute after hastily publishing (and noticing I'd said the opposite of what I wanted to say!).

AND: You can read Hellerstedt here. It was 5-3 because Justice Scalia had died and not yet been replaced. It's virtually certain that Scalia would have voted with the dissenters. With Gorsuch replacing Scalia and Kavanaugh replacing Kennedy, the expectation is that now there is a 5-4 vote against abortion rights just waiting to happen. Either the 5 will give — or begin to give — anti-abortion people what they've sought for half a century or they'll disappoint them.

I've got to expect that the conservative 5 will track the Court of Appeals and issue a minimalist decision that finds enough benefit to the law that it's not an undue burden on the right to have an abortion. The right survives, but legislative imposition on it also survives, and everyone is a satisfied enough to keep up the struggle that's been going on for half a century. Both political parties will be given enough footing to continue the usual abortion politics.

But if the Court strikes down the Louisiana law... well, why would that happen? You know why! It will be because John Roberts will see the value of the role Anthony Kennedy played all these years, and he will vote with the liberals. He'll say — I predict — that adherence to precedent is important and this case can't be distinguished from Hellerstedt and he'll leave the larger questions for another day. That would be the most stable outcome, the one with the least effect on 2020 electoral politics.

Huge decision on political gerrymandering: "We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."

That's Chief Justice Roberts, writing for the 5-4 majority. You can find the news articles yourself, I will read the opinion and update.

ADDED: The case is Rucho v. Common Cause.

The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere....

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing....

But in Baker v. Carr, the Court rejected the idea that redistricting was entirely left to the legislature. It detailed the "political question" doctrine, identifying 6 factors, one of which is "a lack of judicially discoverable and manageable standards," and decided that, in the context of districts with unequal numbers of residents, the Equal Protection Clause was a source of standards. Later, it said the standard was "one person, one vote" — that is, a requirement roughly equal numbers in each district.

There's still a lot of advantage to be taken in where you draw the lines, but it's harder for judges to discover a standard and manage it. When the lines were drawn for racial reasons, the Court got involved, but lines drawn for partisan reasons were always troublesome. There have been a few cases (described in the opinion), but the Court was always fractured over what the standards should be, and a minority of Justices maintained that partisan gerrymandering fell within the political question doctrine. After more than 3 decades, that minority view has become the majority. It was Justice Kennedy — concurring in Vieth (2004) — who kept partisan gerrymandering from going into the "political question" category 15 years ago. So Kavanaugh replacing Kennedy made the big difference.

Roberts writes, showing some deference to Anthony Kennedy but much more respect to Justice O'Connor (who wrote an excellent concurring opinion in the key case Davis v. Bandemer (1986)):

Does it smell funny in here?

When is it okay to shout "Fire!" and cause a panic? Brett looks more like he's smelling... not smoke but ... woman?!?... oh, I don't know, but now, I'm reading the Wikipedia article "Shouting fire in a crowded theater" and I see:

People have indeed falsely shouted "Fire!" in crowded public venues and caused panics on numerous occasions, such as at the Royal Surrey Gardens Music Hall of London in 1856, a theater in New York's Harlem neighborhood in 1884, and in the Italian Hall disaster of 1913, which left 73 dead. In the Shiloh Baptist Church disaster of 1902, over 100 people died when "fight" was misheard as "fire" in a crowded church causing a panic and stampede.

In contrast, in the Brooklyn Theatre fire of 1876, the actors initially falsely claimed that the fire was part of the performance, in an attempt to avoid a panic. However, this delayed the evacuation and made the resulting panic far more severe....

In his introductory remarks to a 2006 debate in defense of free speech, writer Christopher Hitchens parodied the Holmes judgement by opening "Fire! Fire, fire ... fire. Now you've heard it", before condemning the famous analogy as "the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes." Hitchens argued that the socialists imprisoned by the court's decision "were the ones shouting fire when there really was a fire in a very crowded theatre indeed.... [W]ho's going to decide?"

When it's not a real fire, but a political situation, who's to say the perception of a smoldering fire is wrong? Me, I have very little sense of smell, so I've got to rely on other people to alert me about literal smells that signal danger. In the metaphorical realm, where the "smell" is of a developing political problem, those who "smell" it earliest could either be wrong or really giving us a useful early warning that we can pay attention to, contemplate, and maybe do something about before it's too late.

As for the smell of a woman — the smell I imagine Brett Kavanaugh to be screwing up his face about — I tried googling that...



"You know what's kept me goin' all these years? The thought that one day... never mind... silly. Just the thought that maybe one day, I'd -- I could have a woman's arms wrapped around me... and her legs wrapped around me.... That I could wake up in the morning and she'd still be there. Smell of her. All funky and warm. I finally gave up on it." That's the key "smell" quote from "Scent of a Woman."

These days, the idea that you'll wake up one morning with "a woman's arms wrapped around me... all funky and warm" feels metaphorical and horrible. Life was going so well. You were climbing the heights. What a good man you are, admired by all, up and up you go, and then you wake up one morning and she is "still... there..." and she's "wrapped around" you all right. Smell of her.

ADDED: What am I really saying here? Have I bitten off more than I can chew? It's my Kavanaugh gnaw.

AND: I am genuinely working my way toward what I want to say about Kavanaugh's predicament. The most straightforward thing I can say — and I have only figured this out after writing this post to pre-chew things — is:

1. This seat on the Court is especially important because of the threat to women's rights. Justice Kennedy was the 5th vote in key right-of-privacy cases, and women's continuing domain over our own bodies is at stake.

2. Kavanaugh has used his relationship to real-life women as some assurance that he will do right by women. We've heard much talk about his coaching girls' basketball and his hiring of female law clerks. He has forefronted his goodness with women, putting it in issue to meet very specific, important questions we have about him.

3. It's not a case of whether it would be fair to prosecute him for sexual assault after so many years and with this little evidence, but a question whether this person should be confirmed to take Justice Kennedy's seat on the Court and to have power for a lifetime to make decisions that will quite specifically determine the scope of women's rights. He has no right to the seat that's comparable to a right to remain free from criminal penalties.

4. Why should we Americans accept this man's power over us? He's been portrayed as a super-human paragon, and I don't think that can be the standard for who can be on the Supreme Court. It's dangerous to go looking for paragons. Maybe they've got a hard-to-detect dark side that has driven them to a life of saintly good works.

5. I assume all of the Senators are thinking primarily of their own power and how all of this will play in the November elections and in future elections. They are power-seekers and Kavanaugh is a power seeker. I am not seeking power. I am wary of the people who exercise power. I don't trust any of them, and I find it very hard to decide whom to trust here. It's tempting to say, it's wrong to use this device to defeat Kavanaugh. But to say that is to join everyone who insists on thinking of this all in terms of partisan politics. I'm having flashbacks to the Bill Clinton era, when I saw so many fake feminists put party politics first. I didn't. I didn't do it then, and I'm not going to do it now.

"What will the Supreme Court look like when neither side has to walk on eggs to win the favor of the one in the middle?"

"It will be a more conservative court, for sure, and maybe a more honest one. Justices may feel more free to say what they really think, and the public will ultimately judge the result by expressing itself in electoral politics."

Writes Linda Greenhouse in the NYT.

I'm going to look closely at 2 phrases — "more honest" and "walk on eggs."

1. Greenhouse writes "more honest," not "more nearly honest," so — assuming she's in control of her writing — she must see honesty as not absolute: the Court can obfuscate and distort and cheat and still be considered honest, but not tremendously honest, such that one can still hope for "more honesty." If you think a Court that obfuscates and distorts and cheats at all is not honest, then you should write "more nearly honest." I assume that most people who follow the Court closely don't think it is possible or even desirable for the Court to be utterly honest, so you're probably stuck with the nonabsolute meaning of "honest," if you're going to use that word at all.

2. "Walk on eggs"? The conventional phrase is "walk on eggshells," and I can't believe Greenhouse means to create a new metaphor so close to the standard phrase. "Walk on eggs" seems very funny to me, because I'm picturing a floor strewn with scrambled eggs, maybe some sunny-side-up fried eggs thrown in there. And it makes me wonder, in the standard phrase, "walk on eggshells," were we supposed to picture whole, uncracked eggs or just the shells from eggs that have been cracked? I think it's the latter — I don't know — which is why "walk on eggs" struck me as silly. I think we're supposed to picture the discarded shells on the floor and a need to walk on them without cracking them. But what's wrong with crunching down on what is trash anyway? Is somebody sleeping nearby whom we're trying not to wake? I'll speculate that's the idea: we're not worried about breaking the shells, but we're catering to the delicate feelings or short temper of some person who'd be disturbed by something as inconsequential as the crack of an eggshell.

After all those Senators made their lengthy statements — Democrats saying they want more time to read documents and Republicans saying over and over that judges shouldn't act like legislators...

... it finally came time for Brett Kavanaugh to deliver his opening statement.



Let's go through the text:

I have met with 65 Senators... I have greatly enjoyed all 65 meetings. 

A bald-faced lie right there.

In listening to all of you, I have learned a great deal about our country and the people you represent. Every Senator is devoted to public service and the public good, and I thank all the Senators for their time and their thoughts.

Ha ha ha. Learned a great deal ≈ been bored out of my skull. Thanks for giving your time ≈ you took a lot of my time. How that poor man sat through it, I don't know, not that I think he deserves a lifetime seat on the Supreme Court for his trouble, just that it was a lot of trouble.

I thank President Trump for the honor of this nomination. As a judge and as a citizen, I was deeply impressed by the President's careful attention to the nomination process and by his thorough consideration of potential nominees.

Either that or Trump just took dictation from The Federalist Society (which is what I heard on the NYT "Daily" podcast this morning).

As a nominee to the Supreme Court, I understand the responsibility I bear. Some 30 years ago, Judge Anthony Kennedy sat in this seat. He became one of the most consequential Justices in American history. I served as his law clerk in 1993. To me, Justice Kennedy is a mentor, a friend, and a hero. As a Member of the Court, he was a model of civility and collegiality. He fiercely defended the independence of the Judiciary. And he was a champion of liberty. If you had to sum up Justice Kennedy's entire career in one word ... "liberty." Justice Kennedy established a legacy of liberty for ourselves and our posterity.

For posterity, he sat his posterior in this seat.

I am here today with another of my judicial heroes ... my mom. Fifty years ago this week, in September 1968, my mom was 26 and I was 3. That week, my mom started as a public-school teacher at McKinley Tech High School here in Washington, D.C. 1968 was a difficult time for race relations in our city and our country. McKinley Tech had an almost entirely African-American student body. It was east of the park. I vividly remember days as a young boy sitting in the back of my mom's classroom as she taught American history to a class of African-American teenagers. Her students were born before Brown versus Board of Education or Bolling versus Sharpe. By her example, my mom taught me the importance of equality for all Americans—equal rights, equal dignity, and equal justice under law.

My mom was a trailblazer. When I was 10, she went to law school at American University and became a prosecutor. I am an only child, and my introduction to law came at our dinner table when she practiced her closing arguments on my dad and me. Her trademark line was: "Use your common sense. What rings true? What rings false?" One of the few women prosecutors at the time, she overcame barriers and was later appointed by Democratic governors to serve as a Maryland state trial judge. Our federal and state trial judges operate on the front lines of American justice. My mom taught me that judges don't deal in abstract theories; they decide real cases for real people in the real world. And she taught me that good judges must always stand in the shoes of others. The Chairman referred to me today as Judge Kavanaugh. But to me, that title will always belong to my mom.

I've heard him deliver that line before, but it's a great line, and the whole story has exquisitely granular detail — to use a phrase I got infected with while reading the NYT earlier today. Great to centralize the woman. Nice gender politics and nice racial politics. Elegant, sophisticated, credible.

"In the weeks ahead, we’re going to spend a lot of time going over Brett Kavanaugh’s biography — where he’s from and what he’s written. But that’s not the most important way to understand the guy."

Right. Because Kavanaugh, on his own, is completely boring. A normal person hearing the announcement, got excited for 2 seconds before the name was said, then immediately lost interest and moved on. Kavanaugh is a name we'll see for years, merged with other dull names, in Supreme Court opinions that we won't have thought about all that much, because we'll know how they're going to come out. No surprise. No, gee, I wonder how Justice K thinks about these complexities. The new Justice K won't be someone you need to get to know so intimately.

So David Brooks is taking the right tack here:

Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative. 

A judge should seem boring, right? He should seem like a humble servant discovering the meaning of the law and faithfully articulating it. The great accomplishment (described in detail at the link) was to make the conservative view of law feel so completely normal that a judge like Kavanaugh would bore us, instead of seeming like a monstrous outlier, as we were made to see Robert Bork.

I vividly remember this depiction (click to enlarge):

Bork should have been confirmed, of course, and would have been confirmed if there had been a structure around him to explain and defend conservative judges. Brooks explains how in the years since Bork's defeat that structure has been built. But if that had not been needed, Justice Kennedy — about whose swingable moderation liberals wring their hands today — would never have sat on the Court. All these years, Bork would have staked out the right end of the Court, and who knows how much that would have affected all the other Justices and Presidents? Everything would have been different. Perhaps the Federalist Society would not have grown the way it did. Perhaps Bork would not have died of heart disease in 2012, but if he did, would the President who replaced him have been Barack Obama?

"The Trump administration will encourage the nation’s school superintendents and college presidents to adopt race-blind admissions standards..."

"... abandoning an Obama administration policy that called on universities to consider race as a factor in diversifying their campuses," the NYT reports.

The Trump administration is moving against any use of race as a measurement of diversity in education. And the retirement of Justice Anthony M. Kennedy at the end of this month will leave the court without its swing vote on affirmative action and allow President Trump to nominate a justice opposed to a policy that for decades has tried to integrate elite educational institutions.

A highly anticipated case is pitting Harvard against Asian-American students who say one of the nation’s most prestigious institutions has systematically excluded some Asian-American applicants to maintain slots for students of other races. That case is clearly aimed at the Supreme Court.

“The whole issue of using race in education is being looked at with a new eye in light of the fact that it’s not just white students being discriminated against, but Asians and others as well,” said Roger Clegg, president and general counsel of the conservative Center for Equal Opportunity. “As the demographics of the country change, it becomes more and more problematic.”...

The NYT article is rather long, and I think it is designed to lure people into confusing the question of the legal permissibility of taking race into account and the policy judgment of whether race should be taken into account. The Supreme Court cases are about whether affirmative action is permissible (and they say that it is but only if you do it the right way, for the right reason). The executive branch decisions are about whether to encourage institutions to choose to do what they are permitted (but not required) to do.

3 Daily Beast headlines.

1. "Michelle Wolf Compares Ivanka Trump to Herpes: ‘You Always Show Up When We’re About to Get F*cked.'"

2. "Anthony Kennedy, You Are a Total Disgrace to America." "And now we learn that on top of everything else, Kennedy may just be corrupt. So his son Justin, if last week’s New York Times account is correct, in essence kept Donald Trump in business for the better part of a decade, overseeing $1 billion worth of loans to the Trump Organization via Deutsche Bank, where he worked. Justin and the Trump kids are buddies, it seems. Justin and Trump himself are palsy-walsy."

3. "John Oliver Is Devastated Over SCOTUS: ‘Everything Is Terrible Now.'" (Oliver was a lot better than the Beast's headline makes him seem. He was mocking the Donald Trump Jr. tweet that said, "OMG! Just when you thought this week couldn't get more lit... I give you Anthony Kennedy's retirement from #SCOTUS," which clearly deserves the mockery Oliver deftly delivered: "I’m afraid I’m going to have to disagree with Mister Junior on this, because I don’t think this is ‘lit’ at all. I mean, it’s obvs crayAF, no one is denying that fam, but I would argue that this week’s news was neither lit nor on fleek nor was it three fire emojis. Now, granted, I’m still a little shook jsyk, but I personally believe Kennedy’s retirement is super werpt. And I’m happy to announce that in saying that, all of the slang words I just used are now officially dead forever—and that includes ‘werpt,’ a term that doesn’t even exist for which I preemptively ruined just in case.")

I happened on the Kennedy retirement story as I was flipping channels on the car radio.

I was so sure there would be no retirement announcement today. I think the Justices cling to the bench until Death calls for a vacancy. But no. Kennedy retires, and he retires in time for Trump to nominate someone who can be confirmed before the next election works its will on the Senate.

I was away from the blog — driving 100+ miles — but that did give me the opportunity to listen to the cable news channels (via satellite radio) far more than I'd ever put up with them if I were home and in a position to read and write. TV news is such as waste of time. Kennedy was the swing vote, and lawyers fine-tuned their arguments for him. I heard that over and over, with virtually no critical opinion about whether it was bad to have years of key Supreme Court decisions determined by the quirks of one human mind.

But that wasn't the main topic. The main topic — over and over again — was whether the Democratic Senators had any chance to delay the vote on the nominee until after the 2018 elections, which might give Democrats a majority in the Senate. I didn't hear anyone talking about whether a post-election vote on the nominee would help the Democratic Party win the Senate majority.

I think it would not. Voters tend to agree with the GOP's idea of what makes a good Justice — basically, judicial restraint. I don't think it will help Democrats in the elections to be saying give us the majority so we can block Trump's nominee (who will be a specific person, with great credentials, and an originalist, nonactivist judicial philosophy). They'll be better off if the vote has already happened and they can forefront other issues.

Some people may think it's so important to prevent Trump from nailing down a strong conservative majority on the Court, but Democrats would need to win the Senate majority to gain the power to thwart Trump's plan, and this issue hurts them. Anyway, that's something they can soothe themselves with if they fail to delay the confirmation vote, which they almost certainly will.

But maybe you're distracted by the question why did Althouse drive 100+ miles? I'm doing something that will disgust some of you! Actually, I'm doing 3 things, and nearly everyone will be disgusted by at least one of them.

I was so sure there would be no announcement of a retirement on the Supreme Court's last day...

... that I walked away from the computer for over an hour and didn't even think of looking to see what happened.

Here's what SCOTUSblog said, responding to the question "any sign of Kennedy retiring?"

He did not announce a retirement from the bench before the justices adjourned. Some justices (O'Connor and Brennan are two examples) have announced retirements over the summer, fwiw.

Here's how you voted on my poll while we were waiting for the Court to get through its announcements:



UPDATE: This post is funny now! I was so sure...

The Supreme Court is about to announce new decisions — probably something big today.

Keep an eye on the SCOTUSblog live blog!

A reminder that we are expecting the justices to announce opinions in order of reverse seniority. So if we are expecting Alito to write Janus and Breyer to write Fla v. GA, we would get Janus first if those were the opinions for today. Roberts always goes last, and Thomas (who could have NIFLA) would be next to last.

UPDATE: First is Thomas with NIFLA. 5-4.

This case is a First Amendment challenge to a California law that imposes two different sets of requirements on crisis pregnancy centers – non-profits, often affiliated with Christian groups, that oppose abortion. First, it requires centers that are licensed to provide medical services to inform their patients that free or low-cost abortions are available. Second, it requires centers that are not licensed to provide medical services to include in their advertisements disclaimers to make clear that their services do not include medical help.

The court reverses on both notice requirements.

Here's the opinion PDF.

Here's the part about Communists and Nazis:

Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities:

“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted).

Justice Kennedy has a short concurring opinion that is joined by Roberts, Alito, and Gorsuch. Excerpt:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

Breyer is reading his dissent. I'm reading it too. Excerpt:

Abortion is a controversial topic and a source of normative debate, but the availability of state resources is not a normative statement or a fact of debatable truth. The disclosure includes information about resources available should a woman seek to continue her pregnancy or terminate it, and it expresses no official preference for one choice over the other. Similarly, the majority highlights an interest that often underlies our decisions in respect to speech prohibitions—the market- place of ideas. But that marketplace is fostered, not hin- dered, by providing information to patients to enable them to make fully informed medical decisions in respect to their pregnancies.

Of course, one might take the majority’s decision to mean that speech about abortion is special, that it involves in this case not only professional medical matters, but also views based on deeply held religious and moral beliefs about the nature of the practice... We have previously noted that we cannot try to adjudicate who is right and who is wrong in this moral debate. But we can do our best to interpret American constitutional law so that it applies fairly within a Nation whose citizens strongly hold these different points of view. That is one reason why it is particularly important to interpret the First Amendment so that it applies evenhandedly as between those who disagree so strongly. For this reason too a Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion....

UPDATE: Trump just won on the travel ban. Roberts writes. New post up for discussion on that. Keep this comments thread for the abortion-speech case.

"The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion."

Writes Justice Kennedy for the majority in today's Masterpiece Cakeshop case:

Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Kennedy is joined by Roberts, Breyer, Alito, Kagan, and Gorsuch. Thomas writes a separate opinion concurring in part and concurring in the judgment. There's also a concurring opinion by Kagan that is joined by Breyer and one by Gorsuch that is joined by Alito. So that leaves Roberts as the one Justice who adds nothing to distinguish himself from Kennedy. There's a dissenting opinion by Ginsburg, joined by Sotomayor. I'm going to take on the various opinions and will update this post as I go along.

ADDED: Gorsuch writes:

In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. See post, at 4–5, and n.4 (GINSBURG, J., dissenting); ante, at 2–3, and n. (KAGAN, J., concurring). But, respectfully, I do not see how we might rescue the Commission from its error....

The "other bakers" referred to some other cases in which the Commission did not find a violation (such as where the baker refused to make a cake with an anti-same-sex-marriage message). Ginsburg and Kagan think Phillips was different because he discriminated against the person (on the basis of sexual orientation) as opposed to refusing to sell a particular sort of product. But, Gorsuch says, Phillips was rejecting selling the cake that celebrates same-sex marriage, regardless of who wanted to buy it. In fact, Phillips refused to sell the same-sex marriage cake to the mother of one of the grooms. And yet, how is a same-sex wedding cake different from an opposite-sex wedding cake? The cake is the same, but the baker knows how it's going to be used, and he refuses to sell because of that. Is that or isn't that a discrimination against a type of person? That's the big disagreement. That's all I'll say for now about the opinions of Gorsuch, Kagan, and Ginsburg). I'll update soon to tell you something about the Thomas opinion.

AND: Thomas (joined by Gorsuch) writes separately to talk about freedom of speech (as opposed to freedom of religion).

Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.....

The Colorado Court of Appeals was wrong to conclude that Phillips’ conduct was not expressive because a rea­sonable observer would think he is merely complying with Colorado’s public-accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. From the beginning, this Court’s compelled-speech precedents have re­jected arguments that “would resolve every issue of power in favor of those in authority.” Barnette, 319 U. S., at 636...

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414....

I know. The cake. Must talk about the cake.

But you did such a great job talking about the cake in the comments on that post I put up as a place for you to talk about it:

Gretchen said...

Glad Masterpiece was reversed, pretty big decision 7-2 is pretty decisive these days.

Kate said...

So the next time you have to bake the cake they'll use nice words to describe your refusal.

Teller said...

If anything, it was a decision against open hostility to religious beliefs. The more subtle, smirky hostility will eventually carry the day.

Big Mike said...

Yes, the whole thing turns on how many of the justices who concurred will be okay if the anti-Christian attitude of the members of the Commission is better disguised next time. Two? Three?

Now, I'll go read the opinions and see if I have anything special to say. But first, I would like to point out my post from last December that looked closely at what Justice Kennedy (author of today's opinion) said during the oral argument. After a long post about everything he said, I extracted his 3 concerns in order of importance to him. I think the second of the 3 things is what produced today's narrowly framed decision that won 7 of the Court's 9 votes:

Today's oral argument in Trump v. Hawaii — the "Muslim ban" case we now (pretty much) know Trump will win.

Here's Mark Walsh at SCOTUSblog reporting on the big oral argument on the last day of the 2017 Term — Trump v. Hawaii. I haven't read this yet, but from the short article I have read (at the NYT), I think everyone knows Trump is going to win.  I'll live-blog my reading, giving you snippets and comments.

Walsh begins with the weather — "warm but drizzly day" — and observations of who's in the gallery — Orrin Hatch and "a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and original player of the title role) of the Broadway hit 'Hamilton'" and Josh Blackman (who tweets a photo of the autograph he got from Miranda on his pocket copy of the U.S. Constitution) — so this is chronological and grandiosely whimsical.

Walsh calls the argument a "fast-moving, hard-hitting hour" and clues me in that there's another post at SCOTUSblog that's the "main account" of the substance of the argument. I'll get to that. I continue with Walsh.

Understanding Justice Kennedy in the Masterpiece Cake case.

I took the trouble to read the oral argument transcript (PDF), and I "live-blogged" my reading of it. You can read my 32-point post here. Now, that post is raw material to mine for insight into Justice Kennedy, and that's worth having because it's almost a certainty that whatever side he takes will be the winning side. Looking only at things Justice Kennedy said during the argument, I will put what I think are his concerns, in the order of importance to him. (Some of this may be verbatim from my earlier post, but I won't clutter this up with quote marks where I'm only quoting myself.)

1. Empathy for the human beings on both sides of this controversy. Kennedy showed empathy for the gay people who face discrimination: If the cake-maker wins this case, he could put "put a sign in his window: we do not bake cakes for gay weddings," and that would be "an affront to the gay community." And there might be a movement to get all cake-makers to stop making cakes for same-sex weddings. But Kennedy also showed empathy for the cake-maker as he criticized the state for its lack of tolerance and respect for the cake-maker's religious beliefs. Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government. Kennedy never seemed interested in the much-proffered answer that the the religious man could solve his own problem by getting out of the wedding-cake business. I'd say: Kennedy seems to care about the consequences to real people (whichever side wins).

2. Government hostility toward religious people. Not only did Kennedy chide the government's lawyer for the state's lack of tolerance and respect for religion (as noted in #1), he seemed willing to look into the subjective attitude of individual members of the 7-person commission that made the original decision that the cake-maker had illegally discriminated. One commissioner had said that using religion to justify discrimination is "despicable." This connects to Kennedy's opinion in Lukumi, which was about when strict scrutiny applies in a Free Exercise Clause case. There needs to be discrimination against religion (as opposed to a neutral, generally applicable law), and Kennedy's opinion in that case looked at evidence of the lawmakers' animus toward religion. I'd say: Kennedy reacts to what he perceives as hatefulness coming from or through government. There is no current problem of government animus toward gay people (now that the Court has protected their rights in cases authored by Kennedy that were very sensitive to animus toward gay people). The problem now is government animus toward the religious people who are burdened by the success of the gay-rights advances.

3. Judicial expertise in crafting a principled, limited exception to the state's anti-discrimination law. A big issue, throughout the oral argument was: How can the Court define a principled narrow exception to the state's law against discrimination against gay people, an exception that would allow the cake-maker with a religious compunction to refuse to make a cake for a same-sex wedding? Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony. But Kennedy stayed out of the distinction between what is art and what is not art (that seemed to entrance Justices Ginsburg and Kagan) and the distinction between the artist and the artisan (that captivated Justice Breyer).  And Kennedy didn't get involved in Justice Breyer's talk about the the superiority of legislatures in crafting religious exceptions to generally applicable laws and the problem of too many picky little cases that might burden the judicial system if courts try to solve problems like this.

These 3 points, in that order, suggest that Justice Kennedy is likely to provide the 5th vote for the cake-maker's religious exception. But if that's the outcome you like for this particular case, do not rejoice. I think that if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses.

If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake, but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate. What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.

Here's the oral argument transcript in the Masterpiece Cake case.

PDF. I'll just "live-blog" my reading of it.

1. Kristen K. Waggoner, the lawyer for the cake-maker, expresses her argument concisely:

The First Amendment prohibits the government from forcing people to express messages that violate religious convictions. Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religion.

And Justice Sotomayor and Justice Ginsburg both try to jump in with the first question. Ginsburg prevails and asks what if there's no special order, just an attempt to buy a cake off the shelf. Waggoner says her argument is about compelled speech, and if the cake is already made, there's no compelled speech problem.

Justice Kennedy doesn't seem to be accepting this limitation based on what happened first. The cake-maker "expressed himself" when he made the cake, so why can't he withhold the cake when he finds out his expression will be incorporated into a larger speech event that makes the cake say something he doesn't want to say? Waggoner's answer refers to "the stream of commerce," as if once the cake is made and on the shelf, the cake-maker's speaking is in the past, and the customer's acquiring the cake for the customer's purpose exerts no compulsion on the mind of the cake-maker. (I'd add that if the cake-maker wants to exert control over the expression that is a wedding cake, he'd only need to refrain from selling "pre-made" wedding cakes.)

Justice Kennedy — in the oral argument in Masterpiece Cake — "the state has been neither tolerant or respectful."

From the Wall Street Journal's excellent coverage:

Justice Anthony Kennedy told a lawyer for the state that tolerance is essential in a free society, but it’s important for tolerance to work in both directions. “It seems to me the state has been neither tolerant or respectful” of the baker’s views, he said....

Justice Kennedy [asked the lawyer for the state about] comments made by one commissioner on the Colorado Civil Rights Commission who said it was “one of the most despicable pieces of rhetoric” for people to use their religion to hurt others. The justice makes clear he’s troubled by the statement and asks if the state disavows it.

Mr. Yarger said he wouldn’t counsel a client to make a statement like that. Pressed further by Justice Kennedy, he then says, yes, he disavows it.

Justice Kennedy and Justice Gorsuch then go on to ask what the court should do with the case if it believed at least some members of the state civil rights commission had demonstrated hostility toward religion....

I think this suggests that Justice Kennedy (who is potentially the deciding vote), will side with the cake-maker.

But to go off in another direction, I see how this relates to President Trump's travel ban. Should courts look at evidence that a government decision-maker expressed hostility toward religion as they judge a governmental action that does not, on its face, discriminate against religion?

SCOTUSblog is decorated with cakes this morning...

... as the Supreme Court hears oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about whether the government can force a cake-decorator to make a cake for a same-sex wedding. Here's the SCOTUSblog argument preview. Excerpt:

In his brief at the Supreme Court, [Jack] Phillips depicts the legal battle as a pivotal one that threatens “his and all likeminded believers’ freedom to live out their religious identity in the public square,” as well as the “expressive freedom of all who create art or other speech for a living.” He stresses that the First Amendment protects expression, which is not limited to words but can also include visual art, from traditional paintings and movies to tattoos to stained-glass windows. The “expression” protected by the First Amendment also extends to Phillips’ wedding cakes, he says, even if they are made with “mostly edible materials like icing and fondant rather than ink and clay,” because they convey messages about marriage and the couple being married....

The federal government argues that public-accommodations laws like Colorado’s will generally pass constitutional muster, because they normally only regulate discrimination in providing goods and services – conduct that is not protected by the First Amendment – rather than expression....

The implications of a ruling for Masterpiece, the state and the couple suggest, would be sweeping, far beyond the “countless businesses” such as hair salons, tailors, architects and florists that “use artistic skills when serving customers or clients.”...

This is a genuinely difficult case. I empathize with the people on both sides, and I think the legal interests are very hard to prioritize. I was disgusted by the NYT op-ed headline I saw this morning: "The Colorado Cake Case Is as Easy as Pie." What arrogance!

Part of that arrogance — the part that offends me the most — is the high-low distinction in art. I'm very interested in hearing whether the Supreme Court gets into the matter of setting Jack Phillips apart from "real" artists and devaluing his expression because it is in butter-sugar.

By the way, the NYT podcast, "The Daily," has an excellent, well-balanced episode on the case this morning. It includes an interview with Jack Phillips, and you hear Adam Liptak explain the legal issues in a straightforward way. He also goes on to speculate that Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect "the loser."

Jeffrey Toobin says "Ginsburg Slaps Gorsuch in Gerrymandering Case," and I found the video:

Yeesh! That was intense!

Now, what was that all about? As Toobin explains it, in yesterday's oral argument in Gill v. Whitford, the newcomer, Neil Gorsuch, didn't behave with sufficient respect for seniority.

The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries....

So Gorsuch slapped first.  

...of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.

The Gorsuch usage of the word "Constitution" to mean, specifically, the original text harks back to the distinction between "Constitution" and "constitutional law" famously propounded by Reagan's Attorney General Edwin Meese in 1985. Gorsuch was arch and got off a bon mot — "Maybe we can just for a second talk about the arcane matter of the Constitution" — and I'm sure that was irritating to the Justices who want to rest on constitutional law — that is, the court opinions that have over many years supervened the constitutional text with the gloss on the text written by the judges.

Toobin says that "Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution," but all that means is that he proceeded to demand that the lawyer pushing the Court to strike down the work of the state legislature identify the clause of the Constitution that authorizes the Court to act:

“And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?

Toobin calls that a "civics lecture"? I think what he means is that the demand for a text is so basic that to talk about it is to sound as though we are back in high school, and that's either an insult to the old folks on the Court who should be presumed to already know such things or it's an implicit criticism of them for failing to live up to the standards that of course Gorsuch knows they know.

"Kennedy was cryptic about how he might rule in the case, but gave no sign that he has abandoned his view that extreme partisan gerrymandering might—at least in theory—violate the Constitution."

Politico reports (on today's oral argument).

"Suppose [the court] decides this is a First Amendment issue, not an equal-protection issue. Would that change the analysis?" Kennedy asked....

I'd like to see how that question was answered, but I think the honest answer is no.

Chief Justice John Roberts, who's known for a desire to safeguard his court's reputation, was unusually blunt about his concern that opening the door to partisan gerrymandering cases would drag the justices into a political morass. He said voters will look askance at the notion that districts failed to meet a complex formula that assesses wasted votes and a so-called "efficiency gap."

"The intelligent man on the street is going to say, 'That's a bunch of baloney. It must be because the Supreme Court favored Democrats or Republicans,'" Roberts said. "That's going to cause a very serious harm to the status...of the decisions of this court in the eyes of the country."

Here's what I said about the case earlier this morning. I'll have more when I can get a transcript.