Author Topic: The Supreme Court Is Showing an Instinct for Self-Preservation, at Least Until Next Year’s Election  (Read 699 times)

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Online Elderberry

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NY Times By Linda Greenhouse 6/20/2019

The court has passed on contentious cases about abortion and the rights of same-sex couples. Will it now drop the census case?

The justices of the Supreme Court know how to keep out of trouble. That’s the takeaway from the order the court issued on Monday, sending back to the lower court a new case about another baker who wouldn’t bake a wedding cake.

The case, Klein v. Oregon Bureau of Labor and Industries, was a near-exact replica of last year’s Masterpiece Cakeshop case. Like the owner of that Colorado bakery, the husband and wife owners of Sweetcakes by Melissa in Gresham, Ore., claimed that their religion prohibited them from designing and baking a cake to be used in celebrating a same-sex marriage. To do so, the owners explained in their petition to the Supreme Court, would amount to “complicity in sin.” In fact, they said, the very reason they baked wedding cakes was to “celebrate weddings between one man and one woman.”

Like Colorado, Oregon has a public accommodations law that bars business from discriminating on the basis of sexual orientation. Acting on the complaint of a lesbian couple, the official in charge of enforcing that law imposed a $135,000 fine to be paid to the couple as “compensatory damages for emotional, mental and physical suffering.” The Oregon Court of Appeals upheld the order, and the Oregon Supreme Court refused to hear the appeal.

On Monday, instead of adding the case to their docket, the justices vacated the lower-court decision and told the Oregon Court of Appeals to reconsider the case “in light of” last June’s Masterpiece Cakeshop decision. Objectively, that disposition makes little sense. The Supreme Court didn’t actually decide the constitutional issues in Masterpiece Cakeshop. Rather, Justice Anthony Kennedy’s majority opinion found that two Colorado officials who had a hand in deciding the case against the baker had made comments that indicated an impermissible “hostility” to religion. As Justice Ruth Bader Ginsburg observed in dissent, comments by “one or two members of one of the four decision-making entities” involved in passing judgment in the case did not amount to anything the Supreme Court had ever deemed close to impinging on the free exercise of religion. The decision was, in other words, a punt. It has no “light” to shed on the Oregon dispute.

To add a case to the Supreme Court’s docket takes only four votes. The Oregon bakers’ appeal described their case as an “ideal vehicle” that “squarely presents the constitutional questions that the court did not answer in Masterpiece Cakeshop.” Wasn’t that enough to interest four justices? Quite likely, it was, at least initially. That’s where serious strategizing must have come into play. The appeal reached the court last October. The justices took it up at their private conference 10 times. While the closed-door conference is the Supreme Court’s ultimate black box, we know enough about it to be certain that it’s not a place for idle chatter. No doubt memos were circulating, with arguments for and against taking the case. Having ducked this particular front in the culture wars a year ago, did the justices really want to get back in now?