Rips in cosmic judicial fabric

As of July 31st, Supreme Court Justice Anthony Kennedy is retired.  Justice Brett Kavanaugh stands ready to replace him.  Democrats whine, Republicans rejoice, and the political theater is depressing.  Ironically, this judicial swap is unlikely to have much impact; all that is likely to happen is a perpetuation of the dangerous pattern of 5-4 resolutions of important constitutional matters.

The recent majority decision authored by Justice Kennedy in the “gay wedding cake” case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, illustrates this point.  Justice Kennedy spoke for a less than united 6 other justices (there were three separate concurring opinions), with Justices Ginsburg and Sotomayor dissenting.  The result is probably not as earth-shattering as many might believe, which is typical of the narrow decisions made by the “Roberts’ Court.”

Changing justices could change the “voice” of the Supreme Court, as Justice Kennedy has written a number of socially significant opinions.  In the internal politics of the Supreme Court, majority opinions frame the result and deciding who authors one is the right of the Chief Justice (if he or she is voting with the majority) or the senior associate justice (if not).  This plumb responsibility is often delegated to the justice who’s vote swings the result, which is how Justice Kennedy has been characterized as the “swing” justice, a mantle he inherited when Sandra Day O’Connor retired.  In other words, his “moderation” is not the result, but the language supporting it.

As currently constituted, the Supreme Court has four (4) reliable “liberal” jurists appointed by Democratic Presidents – Justices Breyer, Ginsbug, Kagan, and Sotomayor.  They form a solid voting bloc (although not always, as in the baker case).  Opposing them are three (3) very reliably “conservative” jurists – Justices Gorusch (we think), Thomas, and Alito.  Justice Kennedy is a fourth such vote EXCEPT in a narrow band of cases dealing with reproductive rights (abortion), individual rights (same sex marriage) and some 8th Amendment issues (punishment of juveniles and the mentally ill).

Chief Justice John Roberts is a bit of a wild-card.  Yes, he almost always joins with the other 4 conservative justices to form a solid five-man unit.  But, he also is more concerned with the history of the Court than with the results on a specific case, hates narrow 5-4 decisions (although, they dominate “his Court”), and also tries to narrow rulings, so as to avoid legal earthquakes.  In other words, his temperament separates him from Justices Thomas and Alito (Justice Gorusch is too new to have a firm reputation), in his desire to avoid the Supreme Court being a change agent.

This means getting to the magic number of 5 justices “routine.”  Experienced Court observers can accurately prognosticate who “wins” or “loses” legal disputes with the 4 liberal jurists in the minority and the 5 conservative justices in the majority.  This is suboptimal as it robs the Court of speaking with greater conviction, but it is our reality.

This makes Chief Justice Roberts the true “swing” justice, as he was in the “Obmacare” decision.  He controls the breadth of a decision by either writing a narrow majority opinion or assigning this task to someone temperamentally aligned with him – like Justice Kennedy.  Hence, while he can often (but not always) be counted on to vote with the conservative bloc, he will not sign off on an extreme result.

This makes for watered down results lacking broader impact.  Masterpiece Cakeshop is a good example of how Justice Kennedy’s opinions (assigned by Chief Justice Roberts) project minimal impact.  His opinion starts to the applause of the liberal justices, by affirming a baker may not discriminate against a gay couple in providing public services.  Justice Ginsburg’s dissent quotes many passages with approval, while disagreeing with the result.  Instead of going as far as Justice Ginsburg, Justice Kennedy sided with the baker, because he was the victim of a biased state government.  He does not herald the death of gay rights; nor, does he suggests Christian Conservatives are free to discriminate.  Justice Kennedy makes  very clear the permutation thicket of First Amendment issues he is not deciding and might need to be addressed by future legal conflicts.

Briefly, what happened is that a gay couple in Colorado went to Jack Phillips to commission a cake celebrating (locally) their nuptials to held be in Massachusetts; in 2012, gay marriage was still illegal in Colorado and legal in Massachusetts.  Jack Phillips, a devout Christian, refused to do so as a violation of his personal religious convictions about gay marriage AND because gay marriage was illegal in Colorado.  He would sell them anything, just not a wedding cake.  This was an important fact for Justice Kennedy, as he agreed that a person serving the public cannot discriminate based on sexual orientation.  Which should be an important “win” for supporters of gay rights (probably the reason Justices Breyer and Kagan voted with the majority).

Instead of deciding this case on the motivations of Mr. Phillips, Justice Kennedy found Colorado’s civil rights process was biased.  Instead of focusing on the gay couple, Justice Kennedy found that Mr. Phillips’ rights were violated.  In other words, his findings had everything to do with administrative law and almost nothing to do with denying gay marriage rights.  Justice Kennedy focused on the fact that this dispute arose in 2012, prior to same-sex marriage being legalized in Colorado and the Supreme Court’s Windsor opinion declaring same sex marriage a fundamental constitutional right authored by Justice Kennedy) had not yet been written.  Hence, Mr. Phillips had a constitutional religious right not to be forced to create something having the effect of approving or championing something not yet legal or socially accepted in Colorado.  This would be no different than agreeing someone would have a constitutional right to refuse to make a cake containing the “N-word.”

As you can see, then, there Justice Kennedy’s jurisprudence must be viewed through the prism of Chief Justice Roberts.  Replacing him with a more conservative jurist, might only be a difference of tone.  This switch  is unlikely to cause any rips in the cosmic judicial fabric, as long as John Roberts is Chief Justice.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.