The Corner

Law & the Courts

Masterpiece Cake . . . Again

Baker Jack Phillips poses outside his Masterpiece Cakeshop in Lakewood, Colo., September 21, 2017. (Rick Wilking/Reuters)

I’m glad David Harsanyi continues to document the Woke Left’s unending persecution of Jack Phillips, the Colorado cake shop proprietor. I’m constrained to observe, however, that David must continue to do it because, as I maintained at the time, the Masterpiece Cake ruling was an abdication by the Supreme Court in the defense of free expression and conscience.

Far from the victory that many wanted to see it as, it was exactly what progressive legal scholars described it to be: narrow. Mr. Phillips continues to be hounded because that is precisely what the justices invited — which is why the ink was not even dry on the ballyhooed 7–2 opinion before people were suing him yet again.

If a 7–2 “victory” for religious freedom has a familiar ring, it should. It is exactly how the Court last year handled the Little Sisters of the Poor case. As I observed here, they ruled on the narrowest, technical statutory grounds and ducked the main issue. The latter would have called for a definitive ruling that the Obamacare contraceptive mandate imposes an intolerable burden on employers who harbor sincere religious objections — a ruling that would have preserved freedom without imposing any material burden on the availability of contraception. In fact, the Little Sisters concurring opinion by liberal justices Elena Kagan and Stephen Breyer is a veritable “how to” that instructs the government on the surest ways to make the mandate stick in the inevitable next rounds of litigation.

And, of course, it was precisely to entice the votes of Justices Kagan and Breyer that the Court, in Masterpiece Cake, went cravenly narrow. That is how Chief Justice Roberts operates — or, at least, how he operated when the Court was in a 5–4 ideological posture. Roberts is more concerned about the tribunal’s appearance of non-partisan collegiality than with the Court’s actual jobs of acting as a bulwark for constitutional liberties against oppressive government, and with providing clear guidance to the lower courts. He would thus prefer to issue vaporous 7–2 rulings that convince a couple of progressives that it’s in their interest to come along for the ride than 5–4 decisions that decide.

Note that what convinced Kagan and Breyer to hop on board is that they know this mode of operation eventually wears out (and bankrupts) litigants, and its in terrorem effect dissuades other potential litigants from asserting their rights in the first place. After all, the point of extortion is to make paying, rather than standing on your supposed rights, the rational choice. As David relates, Jack Phillips is now in his ninth year of defending himself — lawyers, fees, anguish, round after round of litigation, and no end in sight. The Little Sisters of the Poor, similarly, have been defending themselves for over a decade.

That is progressive governance: The little people can have their narrow “victories,” but the rulers know the process is the penalty. And in matters of conscience, Chief Justice Roberts is all about the process.


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