On the Supreme Court’s Delicious Cake Case

An Amicus podcast transcript.

This is a Nov. 25 transcript from AmicusSlate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court, the courts, and the law. I am Dahlia Lithwick. I cover the courts for Slate, and with this special Thanksgiving weekend–edition podcast, I just want to start by saying that we are thankful for you listeners, and super thankful because this week our guest on the show is Adam Liptak, who covers the Supreme Court for the New York Times. He writes their wonderful sidebar column. Adam was a finalist for the 2009 Pulitzer Prize in Explanatory Reporting and has been a good friend and steady influence at the courts. So, Adam, first and foremost, welcome back to Amicus.

Adam Liptak: It’s great to be here, Dahlia. Always a treat to do this show.

Lithwick: So, among other things, Adam has done great quantities of on-the-spot reporting about Masterpiece Cakeshop. That’s the case that the court’s going to hear in a few short weeks, and Adam, I wanted to have you on the show because I suspect that listeners know a lot about this case. I, in fact, taught sixth graders about this case this week, and they knew more about it than I did, but I don’t know that we know all that you know. So I wondered if you could start us off this week by setting the table just before we get into the nuts and bolts. Why is this case kind of the event of the year at the Supreme Court?

Liptak: You know, it’s curious, Dahlia, because it’s not the most consequential case. We have cases on gerrymandering that could reshape American democracy. We have cases on digital privacy that could completely transform Fourth Amendment law, but this case is so delicious because it’s easy to understand and because everyone has strong feelings about it on one side or the other, and because the facts, as you were suggesting, actually reflect—and this is not true of most Supreme Court cases—exactly what the legal issues are. So if you understand the facts, and they’re fairly easy to understand, you’ll have a sense of what the justices are going to decide.

Lithwick: OK, so give us the facts, then.

Liptak: So, five years ago, a gay couple in Denver visits a baker named Jack Phillips in Lakewood, Colorado, and asks for a custom wedding cake, and here the facts matter a lot because the record reflects that this conversation was very short. There was no discussion of what this cake would look like, only that they wanted a wedding cake and they had some ideas and they brought a binder of ideas, but it never got off the ground because Jack Phillips says to them, “I don’t do cakes for same-sex wedding ceremonies,” and they found this mortifying. One of their mothers was with them—the idea that they couldn’t be served in a place open to the public was embarrassing, an affront to their dignity, and I don’t doubt their sincerity at all.

At the same time, having visited with Jack Phillips, I think he’s perfectly sincere that it would violate his idea of religious freedom, and his conscience, to create what he considers an artwork to celebrate a same-sex wedding. So there are people of good faith on both sides, and choosing between them, one, requires you to go to your set of moral intuitions, but, two, also requires us lawyers to look to competing bodies of law.

Lithwick: So, lay out what happens in the lower courts. It’s worth saying, I think, that while we can talk about Jack Phillips, we’ve seen cases like this arise from calligraphers, florists, photographers. Jack Phillips has kind of come to stand in for all of the folks, the religious dissenters, but take us back—because these folks don’t do well, generally, in the courts—so take us through the history of this one.

Liptak: In this one, the couple goes to the Colorado Civil Rights Commission, which finds that the baker had violated a Colorado anti-discrimination law. Colorado—and this is not true of all states, it’s not true of most states—has a law that forbids discrimination, not only on the familiar grounds of race, and gender, and religion, but also on sexual orientation, and the Civil Rights Commission, and then the Colorado Courts, found that this was a plain violation of this anti-discrimination law, and they rejected Phillips’ argument, grounded primarily in the First Amendment’s free expression clauses, that he had a First Amendment right not to use his artistic abilities to convey a message he disagreed with.

Lithwick: And you hinted at this, but I think it’s worth really unpacking. You sat down with Jack Phillips, you sat down with Charlie Craig and David Mullins, that’s the couple. You really, I think, have made the point, both on this show and in your print reporting, that these folks are all in good faith, right? I mean, this is not a case in which you can say somebody is posturing for larger reasons than their own. These are all people who really deeply and sincerely believe in what they claim to believe, right?

Liptak: Right, and that makes it different from some Supreme Court cases where you have the idea that lawyers have a case in mind and then they go recruit a plaintiff. They find someone for an affirmative action case, or a Second Amendment case, but the case is sort of precooked, and then you have to find a plaintiff. This case arises organically. The incident happens, and as you say, Dahlia, both sides thought they were doing the right thing.

Lithwick: OK, now we have to talk about the First Amendment piece because that is, and again, you’ve reported this out, that is splitting First Amendment diehards in strange and complicated ways. So can you help us understand how it is? I mean, there’re so many amicus briefs filed in this case, it’s extraordinary. Some very strange bedfellows.

Liptak: Yeah. Well, the first thing I’d say, Dahlia, is that you might think this is about a different part of the First Amendment, its religious freedom clauses, but that has almost disappeared from the case, and it’s being argued as a First Amendment free speech case, and that’s telling, because conservatives have really embraced First Amendment free speech principles in all kinds of areas, on commercial speech, on unions, on campaign finance, and now on religion, and it’s the lever that has been very effective in the Roberts court to get things done.

So we see very prominent hard-core defenders of First Amendment rights, people who will almost always stand up for free speech, like Floyd Abrams, who’s probably the country’s leading First Amendment lawyer, Kathleen Sullivan, former dean of Stanford Law School; Jeff Stone, former dean of Chicago; Robert Post, former dean of Yale. All of them filing a brief saying the First Amendment has nothing to say about this, the Colorado law in question is a neutral law of general applicability, and the First Amendment doesn’t figure into it.

Other First Amendment scholars draw different lines. Some of them, like Eugene Volokh at UCLA, says the baker should lose because baking is not speech, baking a cake is great, you can create something that’s beautiful and tasty, but it doesn’t convey messages. He would take a different position on a photographer, so there’s a line-drawing question for some First Amendment scholars. Volokh and the Cato Institute, the Libertarian group, for instance, filed a brief in the Supreme Court saying that photographers should have a First Amendment free speech right not to participate in same-sex weddings, but then they split with Cato saying the same thing is true of bakers, and Volokh’s saying no, baking is different.

Lithwick: And that seems, I mean, it really does seem like angels on the head of a pin. It seems like how are we going to divide between whether a cake baker is a cake artist, as we have here, or a photographer is just doing some. … You know? What about the banquet hall? What about the waiters? I mean, at what point, how you pass this seems to. … Is that really going to decide this monumental case, Adam?

Liptak: You know, I would think that all of the justices will say something like, assuming for sake of argument, that “Making a cake is free speech, we will now give you the answer,” but the Volokh brief was fairly persuasive and it does lay out a couple of tests. It says, “Well, you could ask whether something is inherently expressive, and has historically always been thought to be expressive,” and he says cake making is not that, or is this something where it was intended to, and understood to, express a message? And in the case of this particular cake, I think it may well be that Jack Phillips intended to convey a message, or intends to convey a message, when he makes a wedding cake, but I don’t know that when you go to a wedding and you go, “Good cake,” you’re thinking, “I guess the baker approves of this wedding.” So it may be that under that part of the Volokh test that it’s not understood to convey a message and that may be enough to rule it out.

Lithwick: You’ve said this elliptically, but let’s break it out. I think one of the things that conservatives have done so well in the Citizens United case, we see it, as you said, in the commercial speech context, is create a First Amendment that really does begin to swallow whole other areas of doctrine, and so, one of the things that’s at issue here is, I think, and you’ve just pointed out, a lot of the folks that were on the Citizens United side of Citizens United are now on the plaintiffs’ side here, right? So there’s a strange way in which, here we are in 2017, and speech in America is swallowing everything, or am I overstating things as I am apt to do?

Liptak: No, I think it’s right. I think the conservative project to use the First Amendment to deregulate all kinds of aspects of American law has been hugely successful, and it may be that some people who were on board for almost all of that are having second thoughts.

Lithwick: So you pointed out, and this is, I think, this is the sub-theme of Amicus, but it all comes down to Anthony Kennedy. We know that when he wrote his majority opinion in Obergefell, the marriage-equality case in 2015, he really laid down a marker. He said this is the time for, “An open and searching debate between the people who oppose same-sex marriage on religious grounds, and those who think that such unions are proper and essential.” So he said, “Let’s have this conversation, America, this is the time.” Do you feel sanguine at this moment, that this case, that Masterpiece Cakeshop, is a vehicle for having that conversation?

Liptak: Well, if it is, that may be bad news for supporters of gay rights because there’s … Let’s step back for a second and think about Justice Kennedy. He is, as you know, Dahlia, the leading judicial champion of gay rights in American history, having written every single majority opinion in each of the gay rights landmarks. So, that is his legacy, he’s going to be protective of it, and in general, his inclination is to support gay rights.

On the other hand, he’s the court’s most ardent defender of First Amendment rights, and that passage in Obergefell that you were talking about does suggest that he knows the same-sex marriage decision was hard for some people to swallow, and it may suggest that he’s prepared to defend their right to dissent from it, to not participate in celebrating same-sex marriages. Someone who knows him well said to me, “Justice Kennedy sometimes likes to think losers get to complain,” which is to say, having lost the huge fight over same-sex marriage, it’s at least possible that Justice Kennedy is going to give people, in limited ways, a chance to dissent from the decision.

Lithwick: That probably takes us to the next headscratcher about this case, which is the solicitor general’s brief in this case. Do you want to talk about it for a minute, and then we can pan back and talk about generally what the solicitor general’s office has been doing in some of these landmark cases?

Liptak: Yeah. So I thought it was a curious brief in two ways: one, it’s not really clear what the federal interest is, and why the solicitor general’s office took the discretionary optional decision to file at all, and then there was a passage in the brief, which is really interesting, where it says, yes, this baker has the right to refuse this couple, but if the couple were interracial, and the baker had a religious view about interracial marriage, that would present a different question, and the brief suggested you would get a different answer.

Now, I think that may be, as a matter of litigation strategy, necessary, that the Supreme Court would never sanction discrimination based on race in this kind of setting. At the same time, it’s really hard to draw a principal distinction and allow different kinds of discrimination in the First Amendment setting depending on whether the couple you choose to discriminate against is of the same sex or of different races. So I thought that was an interesting move, and it made me wonder why the SG thought it was such a great idea to participate in this case at all?

Lithwick: And that does raise the question of, we have an SG’s office that has not merely entered into cases, but flipped sides on this case. This is an SG’s office that is kind of rescinding the Obama SG’s views on gay rights, and on, just generally in other contexts in gay rights, we’re seeing a Justice Department that has really taken pains to say, “We are disavowing things that this office may have said two or three years ago.” I guess my initial question is, I think about this all the time, we like to believe that that bothers the justices, that it’s strange, that there’s a sense that the gravitas of this solicitor general’s office is such that they don’t go flipping and flopping. Do you have a sense that they’re bothered by this, or is this something journalists say to each other late at night when they just have nothing left to talk about?

Liptak: I do think I would draw a distinction between the Justice Department generally, the administration generally, they’re allowed to have different policy views than the predecessor administration. The solicitor general’s office is special. It’s a highly professional, largely apolitical body that prides itself on continuity and candor, and really, very rarely, and only after deep reflection, switches sides. Yet in the Trump administration, not only has the SG’s office changed its view on various questions, but in pending cases, over and over again, it’s switched sides, and I don’t have recent examples of that.

I mean, I know in the Obama administration, that the administration disavowed earlier positions in different cases, but we’re talking about pending cases, and there are at least three that I know of: one about arbitration causes and employment contracts, a hugely consequential case, the administration switches sides. The second, on whether Ohio can purge its voting roles, the administration switches sides, and just the other day in opposing a request for Supreme Court review, the SG’s office abandoned the position it had taken over 16 years in 11 different Supreme Court briefs and told the court two things: one, that people serving prison terms that may be unlawful in some settings don’t have the right to challenge them in court, and moreover, urge the Supreme Court not to hear the case and not to have its new view tested, and all of that is, to my knowledge, quite unusual.

Lithwick: Do you have a sense that the justices clock this as appalling? Or is it just of a piece with, we’re in a new world now, and whatever the traditions and the norms that bound the SG’s office before, they’ve fallen away, and we just all, good, everyone’s being honest now.

Liptak: The justices, and the chief justice in particular, has in the past, needled lawyers from the SG’s office who show up and say something different than the office had said before. Now, he may be just having some fun with them, but it does seem to be something on his mind. Then there’s the sort of more legalistic question. It’s very hard to say that, in a case where the old administration said a statute means one thing, and the new administration says the statute means a different thing, that that new view should be entitled to any particular deference. When the government tells you what a statue means, you might typically give it some weight, but if it’s telling you that it means different things on different days, you’ll probably give it a little less weight.

Lithwick: So this leads me to the deeply strange filing that comes out of this SG’s office in the Jane Doe case, and that’s the Texas abortion controversy of last month that involved a minor who was coming across the border and then was precluded, for quite some time, from having an abortion despite the fact that a Texas judge had given her a judicial waver, and this all, we thought, got resolved in the courts and at the D.C. Circuit, and then lo and behold, we have the solicitor general’s office helicoptering in to file a brief. Do you want to talk about that?

Liptak: Yeah, so this is another curious filing. As you were saying, Dahlia, the D.C. Circuit gave this teenager the right to exercise her constitutional right to an abortion, which the government did not contest she had, and in very short order, she got her abortion. The Justice Department thinks that all of that happened too fast. They say that they would have liked to go to the Supreme Court and try to get a stay of the D.C. Circuit decision to prevent her, at least temporarily, from getting the abortion, and they say that the lawyers who represented her at the American Civil Liberties Union had somehow tricked them into thinking they had more time than they did to file for that stay.

I think the record on that is very thin, and the notion that your adversary trying to assist a client to exercise a constitutional right has some obligation to keep you informed, is not a particularly well-established proposition in the law, but nonetheless, the SG’s office goes to the Supreme Court, which has never heard the case, files a petition seeking review … of what? The case is moot. Saying that they would like the lower court decision to be vacated in light of that moot, and that’s fine, but also saying that the court should consider imposing professional disciplinary sanctions on the ACLU’s lawyers.

The Supreme Court bar, as you know, Dahlia, is supremely collegial and professional, and to take that kind of swipe at distinguished lawyers, out of the SG’s office, is jaw dropping. Is it justified? We’ll see more as more papers come in, but it is … no one can think of an analogy for it.

Lithwick: And I think you’re right, it’s jaw dropping, they’re suggesting sanctions for the attorneys who litigated this case, but beyond that, I think, and Marty Lederman has done a bunch of work on this, just the procedure of how this thing got to the Supreme Court seems awfully strange and unprecedented. Do you read anything into this? I mean, is this just, “It’s just chaos over there?” Or is it that we’re seeing the SG’s office using its authority in ways that we’ve never seen before? Or are you telling me it’s just too early to know what’s going on?

Liptak: All I can do is speculate from the available information, but it would not surprise me if this filing didn’t originate in the SG’s office, but higher up in the Justice Department. For starters, the SG had 90 days to file the cert petition; it filed, like, nine days later. Its only goal, its only real goal, seemed to be to beat up on the ACLU. It’s just too weird. It’s not something that career lawyers in the SG’s office would even think of doing, and I guess I have some evidence for that because no career SG lawyer signed the brief.

Lithwick: So that’s a good segue into my last topic I want to wrestle with, which is, you and I are talking in a moment when the president is tweeting in all caps, “IT WAS ME.” We’ve got Congress passing this strange tax reform bill that keeps changing. The whole world seems kind of bonkers, and yet, you cover what could be, I think, largely called the last serious, and largely unchanged branch of government.

I mean, in the Supreme Court, with the exception of whatever happened with Merrick Garland and Neil Gorsuch, your life is the same. The utter lack of guardrails in the rest of government doesn’t affect you, and yet, am I wrong to say even life at the court has gone a little weird based on—well, I don’t know if it’s based on what you’ve just described about what’s happening at the SG’s office, or if it’s based on these claims that everybody hates Neil Gorsuch—but is your life different in any measurable way? Is your beat different because of the Trump era, or are you covering the sort of “Supreme Court of Dorian Gray” where everything is the same, and it’s all weird everywhere else?

Liptak: It’s different, but probably not in the sense you mean it, Dahlia. I think the Supreme Court has been for a long time, and remains, unlike the rest of our government, a serious institution made up of grown-ups who have strong differences, but try to address them through reasoned argument, and is worthy of respect in a way that it’s not always easy to summon up respect for other parts of our government. The court is different this term because they’ve, now that they’re back to full strength, they’ve taken on a bunch of really big cases, but I don’t see a sort of fundamental change in tone that we’ve seen in other parts of the government. I don’t see that kind of nastiness and polarization. In fact, it’s free argument.

Now, the introduction of a new justice, as Justice Bader Ginsburg said, does change the court. Every time a new justice arrives, it changes the court, and I think Justice Gorsuch is affecting the atmosphere at the court as any new justice would.

Lithwick: How much buy in do you have? In every single episode of this show I say, “I’m not going to talk about the rumors about Kagan and Gorsuch pulling each other’s hair, or Ruth Bader Ginsburg smacking him upside the head,” because that’s crazy gossip, but I’m going to ask you now, because it’s Thanksgiving and I’m thankful for you, is it, do they hate each other? Is it just, am I missing something? Is it unlike anything we’ve ever seen before where there’s like a bratty kid and everybody just bonks him on the head every opportunity they can?

Liptak: I don’t have any evidence on behind-the-scenes unpleasantness. I have more than a little evidence of, at argument and indecisions … how to put it? A kind of assertiveness on the part of a very new justice, who sometimes doesn’t hesitate to lecture his colleagues, and sometimes takes the tone with advocates, that is new at the Supreme Court, this sort of counsel, “Why don’t we start with the Constitution? That’s a good place to start, wouldn’t you say?” And that’s a new tone at the court, which tends to be a little wonkier and may assume that the Constitution is a good place to start without having to say so.

Lithwick: Right, right. Do you think … I feel like I’ve asked you this question, but it was pre-Trump, so how much do you think, when the justices read their newspapers or listen to NPR, or whatever they listen to on the way in to work, they feel a … I know, and I agree with you, that they feel a responsibility to project normal, project adultness, to reassure the country that, even when everything is bananas outside the court, that they are really not that, but how much do you think it leeches into the way they think about cases? Is there a sense that we have an additional responsibility that we have to perform normal adultness because the rest of the country has kind of gone off the rails? Or do you think they’re unaware of that, or don’t feel responsible for performing that to reassure us that they’re still grown-ups in charge?

Liptak: No, I think they’re very savvy, they’re very alert, they know the Supreme Court has a special function, but they also know that they have to protect the authority and legitimacy of the court. I think the travel ban case is an excellent example of the Roberts court trying to sort of lower the temperature on a really ugly dispute, and find the middle ground, and find a way not to decide, even as through the summer it kept tweaking the who could come in, who could come out, in cases where at least it wasn’t splitting 5–4. So there’s good reason to think that the court, and the chief justice in particular, are very alert to exactly what you’re talking about, Dahlia, that we’re living through an exceptional era and that they may have a special role to perform, given that.

Lithwick: Last question, and it’s tangentially related to what we just talked about, but what do they do, and what do we do when Donald Trump keeps trying to weaponize the court and the courts, and makes statements about how he’s changing the courts? He just added new names to his list of, “In case you want to leave, Justice Kennedy, I’ve got even more people that I want to put in your seat.” So Trump is certainly working against the interests that you’re describing of the court sidelining itself, taking the temperature down. What does that do to the stability of the institution, and again, does that affect the justices when he’s kind of openly proclaiming that the court is a football and that he’s spiking it?

Liptak: The court is a football, the American justice system, criminal justice system, he was heard to say, is a “laughingstock” and a “joke.” You really worry that just as he has made it his mission to delegitimize and undermine the news media, he has a similar view about an even more important pillar of American civil society, the courts. I think the justices are very aware of this, but a little confused about what they can and should do in response. It may not be the best idea to engage directly and dignify this fight. So I think they’re concerned, but may not have the tools to do anything beyond doing their jobs as well as they can.

Lithwick: And yet, we’ve got a justice who’s 84, a justice who’s 81, a justice who’s 79. I mean, one thing they can do is make decisions about retirement, talking about retirement, their replacements, does that affect it? I mean, I guess I’m talking about Anthony Kennedy. Let’s just call it what it is, let’s say—

Liptak: We always are.

Lithwick: We always are. I mean, does Justice Kennedy, at night when he’s flossing, think to himself, “Boy, those extra names on the list make me apt to retire right now,” or does he have to, in order to do his work, just not think about the football-ness of the whole court and the institution. We know how much he, more than anyone, reveres this institution, and the chief justice as well. When he’s thinking about retirement, does he factor into it that the president is talking about his retirement all the time?

Liptak: I think he’s got conflicting impulses. He is, after all, a Republican, and he might well want to retire under a Republican president. On the other hand, he really cares about civility and old-fashioned values, and I don’t think what I know of Justice Kennedy fits very well with the Trump era at all. On the other hand, administration officials have told me that they are pushing some potential replacements, in particular, Judge Brett Kavanaugh of the D.C. Circuit, because they’re former Kennedy clerks and they think that that might appeal to Justice Kennedy. Now, is that flattering or off-putting? I’m not sure.

Lithwick: My guest this week was Adam Liptak. He covers the Supreme Court for the New York Times and has been always a bracing voice of sanity and coherence to my Chaos Muppetry on the courts, so Adam, thank you for joining us.

Liptak: Thank you for having me, Dahlia, and I love the show.