The Narrow Way (Parts 1–3)

In the online discussion before my piece went up at NBC, the description of Kennedy’s opinion in Masterpiece Cakeshop as “narrow” had already congealed into something between a cliche and a punchline. This is not to say it’s inaccurate, as far as it goes. The judgment was wrong, but for an advocate of vigorous civil rights enforcement “the jurisprudential equivalent of a Bari Weiss column” is certainly preferable to a ruling in favor of Phillips on free speech grounds or a free exercise holding that overruled Smith.

As a long-time critic of Roberts Court minimalism — for the long version, see chapter 3 of our book — but I would like to sound a note of caution before we write the opinion off as an irritating nothingburger. A great deal of doctrinal change has come in the wake of Supreme Court decisions that are formally minimalist. A few points:

• The decision needs to be seen in tandem with Hobby Lobby, another decision that Kennedy assured us in a concurrence was very narrow. No matter how narrow individual decisions look on their face, enough opinions finding religious exemptions to the enforcement of civil rights laws pile up and they begin to make a big difference. (William Brennan was as much a master of this as Alito.)
• Minimalist theorists like to tout minimalist opinions that (unlike, say, Hobby Lobby) leave more discretion to elected officials. What generally receives less attention is the greater discretion that minimalist opinions give to lower courts.  This is where Trump’s rash of nominees matters a great deal — the opinion will lie around like a loaded weapon for conservative judges searching for anti-religious animus in the enforcement of civil rights laws. Oh, and thank you Pat Leahy!
• Smith is far from safe. The Gorsuch/Alito concurrence clearly signaled that they think the case was wrongly decided. Kennedy is the last member of the majority remaining on the Court. It’s entirely possible that, as is happening with Chevron, this will be a conservative-created doctrine abandoned by conservatives (whether explicitly or sub silentio) because it not longer serves their interests.