One of the cans that the Supreme Court’s proverbial foot keeps kicking down the road is the Masterpiece Cakeshop case, a controversy about whether a baker’s First Amendment rights were violated when he was forced to contradict his personal religious beliefs (the Colorado Court of Appeals ordered him to bake a cake for a gay couple’s wedding).
The Court hasn’t yet set a date for oral argument. But why not? Think of it like this:
The jurist should be viewed as a songbird in a cage, warbling inside its gilt enclosure, but only so long as the master’s hand—the hand of the now-remnant progressives in government—replenishes the feedbox. The songbird is silent because its’ master’s hand has been obstructed. Activists have been stymied by unpredictable political changes. Right now, there is an absence of what Professor Ran Hirschl describes as “judicial empowerment.”
Despite the prevailing notion that judges are infallible, brilliant apostles of neutrality, the judiciary is common kin with the other two branches of government. Every branch is a farmstead populated with political animals. To help understand those animals, one can look to Hirschl’s explanation of how elites stow away their waning power in the judiciary: Through a phenomenon called hegemonic preservation.
Elites will only trust courts, and courts will only act to forward elite goals, when three things happen.
First, legislator-masters must know with some certainty that the judiciary is “likely to produce decisions that will serve their interests and reflect their ideological preferences.” That judges tend to drift to the left is a well-accepted proposition. To understand the drift, though, is more complicated. To begin, one might look to the jurisprudence of Judge Richard Posner, one of the most influential jurists in American history, and the ocean of logic which separates his past and present philosophies. Posner’s two-decades’-old criticism of the Supreme Court’s judicially mandated comingling of sexes at the prestigious Virginia Military Academy was that it was a “wedge decision,” “a first tentative step towards a new abyss” where impulsive egalitarianism won out because of “uninformed adventures in judicial activism.”
Fast forward to 2017, when the seventh circuit held in a civil rights sexual harassment claim that Title VII—the provisions from the 1964 Civil Rights Act which prohibit sex discrimination—covers sexual orientation too. The majority rationale was partly a conflation of sex and sexual orientation/harassment, lecturing that “the term ‘sexual orientation’ was not defined in the dictionary around the time of Title VII’s enactment, but neither was the term ‘sexual harassment.’” The Judge Posner of yesteryear might’ve respond that “[a]nalogies are typically, as here, inexact and often, as here, misleading.” Common sense tells us that being of the male or female sex—“either of the two major forms of individuals that occur in many species”—versus being sexual—“having or involving sex” as in “sexual reproduction”—are different. Victims of sexual harassment are sexualized, not biologically categorized.
If Posner can flip, anybody can.
What further explains the elitist Court’s unwillingness to hear Masterpiece Cake is the second characteristic of hegemonic preservation, the legislator-masters’ need to be sure that they’ve got “general control over the personal composition of national high courts.” This judicial surety bond was robbed of its value on Day One of Justice Neil Gorsuch’s tenure. Attacks on the legitimacy of both Gorsuch’s nomination to the Supreme Court and of the legitimacy of the Court itself began in earnest, and showed a weakened compact between elites and their agents on the bench.
There also must be “widespread public trust in the political impartiality of the judiciary,” a trust that has eroded in recent years. For the juristocrat, it is an article of faith that federal and state-Supreme judges are infallible, brilliant apostles of elitist thought—angels that wear robes, not haloes. But the everyday public isn’t buying what the juristocracy is selling. The double-dealing of juristocrats is carrying less purchase every day.
Nevertheless, if the time isn’t right for hegemonic preservation, that doesn’t necessarily mean that courtrooms will cease to be the culture warriors’ battleground. The zealotry of true believers translates into a judicial cost-benefit calculus that may skew against the public’s interests. Sometimes courts will get away with it—when the Washington Supreme Court punished a florist for refusing to sell to a gay couple getting married—and sometimes they won’t—when Arkansas voters were enraged that their state supreme court had struck down the Arkansas Medical Cannabis Act.
Soon enough, the New York Court of Appeals—the Empire State’s highest court—will hear arguments on the euphemistically termed “right to die,” meaning euthanasia. That is an issue localized in a highly liberal state, so it wouldn’t be surprising if euthanasia carried the day.
But as far as Masterpiece Cake goes, in a country of more than 300-million varied opinions, with a Supreme Court the public evaluates more skeptically each day (and a lingering throw-the-bums-out-mood), nobody should be surprised that the Supreme Court is biding its time.