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Friday, December 01, 2017

Drifting justices

Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.

This is an intriguing argument to which I would add a few thoughts.

1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.

2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Let's say a vegetarian cakeshop didn't want to cater a Santeria Animal Sacrifice event. Let's say, like Jack Phillips, he was willing to serve them any other cake for any other event, but they didn't want to be part of an animal sacrifice event. Are they being anti-Santeria or being anti-animal sacrifice.

If Jack Phillips serves gays everyday, then he simply can't be anti-gay. He doesn't have to accept gay weddings, in contradiction to his religion, to be pro-gay, anymore than someone has to pro-circumcision to be pro-jew.

Posted by: Lukumi Babalu Aye | Dec 5, 2017 4:25:28 PM

You could recast not having sex with someone as doing something, but we normally describe the person who has the sex as "having sex" (doing something) and the person who didn't have sex as "not having sex" (not doing something).

When someone asks you what you did last Friday, they expect you to give a list of things you actively did, not a list of things you decided not to do. If you only tell them all the things you decided not to do, they will feel that you didn't answer their question.

Posted by: Doing | Dec 5, 2017 3:55:33 PM

"excluding people from his place of public accommodation"

He didn't though. He said he would bake them any cake for any reason EXCEPT for a gay wedding. They were free to enter his shop and they were free to buy anything from him. He simply wasn't going to be a part of their wedding.

Posted by: M. Ali | Dec 5, 2017 3:41:56 PM

You could recast not joining the military as doing something, but that still wouldn't mean it's moral to force conscientious objectors to join the military

Posted by: M. Ali | Dec 5, 2017 3:40:04 PM

That seems circular. We could recast what the baker is doing here as doing something--excluding people from his place of public accommodation for certain improper reasons, which is perfectly illegal under state law.

Posted by: Howard Wasserman | Dec 5, 2017 2:23:02 PM

Employment v. Smith was about doing something (smoking pot); this case is about NOT doing something (not catering a gay wedding).

Smith lost because he wanted to do something that was illegal recreationally to atheists; the baker wants to NOT do something that each of us doesn't do every day (cater weddings). (That is, he can close his business and not cater the wedding and he won't be breaking any law.)

Not catering weddings is perfectly legal--all of us (except some people in the catering industry) don't do it every day--that's completely different from smoking pot which is perfectly illegal federally to all of us (except perhaps medically).

Posted by: Timothy | Dec 5, 2017 2:19:55 PM

I think it would be a burden if everyone were declining your service, ala the Jim Crow south, but it doesn't sound like it's even a majority of businesses that are refusing service.

http ://www .cleveland. com/business/index.ssf/2015/07/should_businesses_be_allowed_t.html

The survey found that 65 percent of small businesses in the retail and service industries oppose denying services to LGBT individuals, even for wedding-related service.

Posted by: Miner Ity | Dec 5, 2017 1:05:46 PM

Art Deco: So we have our point of departure. That is not a world in which I would like to live.

Balkin: That argument would have to work if he also refused an inter-faith wedding or interracial wedding. Under current law, it would not work on the latter and probably wouldn't work on the former. Plus, the reality is that current First Amendment doctrine says no religious accommodations are required from neutral laws of general applicability. So the nature of his religious objection doesn't matter--current law does not allow such religious opt-outs, at least so long as they are reasonable.

Posted by: Howard Wasserman | Dec 5, 2017 1:05:42 PM

"Public-accommodations laws are premised on the idea that it is a burden for people to be excluded from businesses, "

And it's a bad premise. A bakery is a commercial service provider, not a monopolistic common carrier.

Posted by: Art Deco | Dec 5, 2017 1:01:11 PM

http: //www.cnn. com/2017/12/05/politics/supreme-court-masterpiece-cakeshop/index. html

He offered to make any other baked goods for the men.

So he didn't refuse them service because they were gay, he refused to be part of a gay wedding (something traditionally forbidden in Christianity and Islam).
That doesn't sound like homophobia, since the homophobic would've denied them all service based purely on their homosexuality, right?

Posted by: J Balkin | Dec 5, 2017 10:58:30 AM

Public-accommodations laws are premised on the idea that it is a burden for people to be excluded from businesses, at least for certain reasons. Federal law has been second-guessing business preferences for at least 50 years and first tried it almost 150 years ago. Many new religious-liberty claims, such as Masterpiece, entail people seeking to opt-out of those laws. But if allowed to do so, it makes it impossible or more difficult for certain people (LGBT, African-Americans) to access public accommodations to which they are otherwise legally entitled to access, imposing on them the burden these public-accommodation laws were designed to remove.

One can debate where that balance should be struck and who should win. And I suppose one can debate whether public accommodations laws are a good idea (the tenor of Art Deco's comment suggests he believes not). But these are cases of competing burdens.

Posted by: Howard Wasserman | Dec 5, 2017 9:28:14 AM

I suppose Holmes in the move from Scheck/Debs to Abrams within the same calendar year.

Posted by: Howard Wasserman | Dec 5, 2017 7:05:32 AM

"But religious-liberty questions now are framed in right-leaning terms, about individual opt-outs that burden third persons."

You're not 'burdened' if someone declines to do business with you. Every economic transaction incorporates decisions of this character. It's just that the legal profession has it's mascots and politicians accede to that viewpoint. Ergo, you're 'burdened' if you're not given due deference that types like Prof. Wasserman fancy you should have. And, of course, lawyers in legislatures extend to other lawyers a franchise to second-guess the preferences and business decisions of others.

Posted by: Art Deco | Dec 4, 2017 12:19:03 PM

Blackmun changed his vote leftward in Garcia v. San Antonio from National League v. Usery.

Posted by: Blackwoman | Dec 4, 2017 7:43:47 AM

If anything, Roberts has moved right with the conservative legal establishment. His anxieties about Chevron, or his holding that Congress lacks Commerce Clause power to mandate the purchase of products in interstate commerce, or his invalidation of Bush and the Republican Congress's reauthorization of Section 5, aren't obviously positions he held when he was confirmed.

Posted by: Asher Steinberg | Dec 3, 2017 2:23:47 PM

As Primus says in his article, a person can be for handguns but against machine guns (or for first-term abortions but against third-term abortions);
but how many cases are there where a judge voted for (or against) something and then when the exact same case came up again and was reversed did they vote the other way the second time?
For instance, when Black, Douglas, and Murphy switched their votes in the second pledge of allegiance case.
Or when Justice Roberts switched his vote in the second Morehead case (West Coast Hotel)
That was a true leftward drift.

Posted by: Lazarus | Dec 3, 2017 1:37:25 PM

But religious-liberty questions now are framed in right-leaning terms, about individual opt-outs that burden third persons.

Posted by: Howard Wasserman | Dec 3, 2017 9:28:50 AM

Religious liberty is interesting, because it exemplifies what Primus was talking about with rightward drift of the questions presented. At the time of Smith, religious liberty was about protecting minority religions against majoritarian laws that did not impose third-party burdens (Indians exempted from criminal peyote laws, Santeria burdened by targeted animal-sacrifice bans, minorities having to walk past creches at City Hall). Brennan, Marshall, and Blackmun dissented in Smith. And the liberal view rejected the Masterpiece Cake/Hobby Lobby arguments as to race discrimination.

Posted by: Howard Wasserman | Dec 3, 2017 9:22:06 AM

Conservatives are pro-religious liberty. So when Scalia voted against religious liberty in Employment Division, was he voting as a liberal?

Posted by: Smith | Dec 2, 2017 8:55:10 PM

The supreme court does mostly involve issues that interest republicans. What neglected issues do you think the supreme court will take up the next time they have a majority? What kinds of cases do you think will bring out the swing democrat justices (Frankfurter, White), the way abortion, gay rights, and affirmative action bring out Kennedy?

Posted by: Byron Black | Dec 2, 2017 6:44:16 AM

We also have to remember that most people are a mix of left (or right) and a bit of right
(or left). For example pro-gun Marxists (blue dog dems) or pro-environment Capitalists (red cat repubs). Roberts is a pro-ACA Capitalist (white cactus/Arizona republican).

Posted by: Milodrama | Dec 2, 2017 1:39:27 AM

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