The Times, We Are Campaigning! (Starting With Biden)

Those readers familiar with my 2016 election coverage remember that I strongly believe that to fully understand a presidential candidate, it is necessary to see them in their natural environment: on the campaign trail, speaking to, and with, voters.   Without attending the rallies, it is easy to let prior assumptions drive election analysis, as happened to me when I initially failed to understand the scope of and reasons for Trump’s support, and instead was too quick to write off his presidential candidacy.  (For my analysis of what I saw and heard at his campaign rallies, see here). Direct observation also helps sidestep the influence of a media that is often too eager to fit a campaign event into an existing narrative that may not fully capture what actually occurred.

With that in mind, and given that the “invisible” primary has become slightly more visible (thanks to the first set of debates (see my debate analysis here), once again I’ve begun my quadrennial madness, dashing from campaign event to campaign event in order to give you an unvarnished (as much as possible) ringside seat for what is shaping up to be another fascinating, and portentous, election.  My initial focus will be on the Democrats’ side of the nominating process, since that is where the action is.  We begin with my visit to a Biden campaign event in New Hampshire, once of several he held in the Granite state yesterday.  Biden, of course, was coming off a subpar debate performance two weeks ago highlighted by his exchange with Senator Kamala Harris regarding mandatory busing to integrate public schools – an exchange that, as replayed by the media, likely contributed to a post-debate erosion in Biden’s polling support.  Much of the polling support Biden lost appeared to move to Harris, as she saw her polling numbers increase by about 8%, pushing her into a virtual tie for second in national polls, with Sanders and Warren.

RealClearPolitics Polling Averages

So, I was eager to see how Biden would respond in the aftermath of the debate.  Would he continue to position himself as a front runner, focusing primarily on his ability to beat Trump?  Or would he respond to the attacks by his Democrat rivals?  As it turned out, he did a little of both.  (As always, in writing these posts I am relying on contemporaneous tweets send out by me during the event, notes taken by my fellow campaign analyst and wife Alison, and my increasingly faulty memory.  All references to statements by others are paraphrased, unless in quotation marks.)

We arrived at Mack’s Apples, a picturesque little farmer’s market in Londonderry, just as Biden launched into his speech.  Although Biden was speaking from inside a small barn, most of the 300 or so people attending (but not the media) were outside, trying to stay cool on an extremely hot day. 

Inside The “Barn”

Biden prefaced his talk by saying he was in the race for three reasons: health care, climate change, and to bring the nation together. We did not hear Biden mention his Democrat rivals by name, but it was clear they were on his mind when he launched into a strong defense of the Affordable Care Act, arguably Obama’s signature domestic achievement, saying he would oppose any effort to replace it.  In a not-so-slightly veiled barb at his opponents who are pushing to supplant the ACA with some version of Medicare-For-All, Biden argued instead for strengthening and extending the existing health care legislation, in part by adding a public option, which he sees as both a less expensive and more politically feasible approach.  He also sought to link health care to criminal justice reform by emphasizing the importance of drug treatment as an alternative to incarceration for addiction.

He then turned to climate change, saying everything else pales in comparison.  He promised that the first act of the Biden presidency would be to rejoin the Paris climate accord, which generated strong applause from the audience. He noted that although the U.S. contributes 15% of global carbon emissions, it should use its position of influence to work with other nations to reduce overall emissions.  Trump, he argued, hurt this effort by isolating the U.S. and damaging relations with our allies – a pattern Biden pledged to reverse, citing his extensive experience on the Senate Foreign Relations committee. He also pointed out that there were immediate steps the country could take to curb emissions, such as increasing the number of charging stations for electric cars.  

Biden’s final point centered on an issue that has gotten him into difficulties with some of his opponents: the need to work with political opponents to get things done, which he sees as crucial to bringing the nation together. The President, he said – using language drawn straight from Richard Neustadt’s classic work Presidential Power “must be able to persuade.”   (At this point I tweeted that he had already earned my vote simply by quoting my dissertation adviser! – if I voted. Which I don’t.)  He defended the need for political pragmatism and pointed out that it was that focus on reaching across the aisle for support that led to Democrats’ victories in predominantly red states in the 2018 midterm elections.  He also made a plea to the millennial voters, arguing that they could have a transformative impact if they voted at the same rates as everyone else.  

Biden finished on a rhetorical high note by trying to draw contrasts with Trump and his political supporters. “We are for hope, they are for fear,” he roared, “We are for unity, they are for division” and finishing with “We are for truth, they are for lies!”   The music kicked in, and he waded into the small crowd in the barn to meet and greet, followed by a line for those seeking selfies with the candidate.

Biden Meeting and Greeting

Biden took no questions, and in total his talk lasted perhaps 15 minutes. This was a quick campaign stop wedged in among longer events he held in other spots in NH that day. In that time, however, it was clear that he was not apologizing for some of the stances for which he has been criticized, particularly his effort to position himself as the candidate best able to get things done, even if it means working with political rivals, and as someone with a voting record that supports that contention.  His tone was feisty, as he doubled down on what seems to be the core of his candidacy: that he has the best chance to beat Trump – a point reiterated by an older man when I asked him what he thought about Biden’s speech.  “It was great.” he said.  “He’s the only one who can beat Trump.”  “Well, that’s what he said,” I responded.  “He’s right,” the man replied.

It remains unclear whether Joe will get the chance to prove that claim, or whether Democrats will view him as too old, and too willing to compromise core Democrat principles as articulated by the more progressive wing of the party.  On the surface he remains as folksy and confident as ever, continuing to banter with the crowd from his SUV as he left the event. Meanwhile, we headed north to see Beto O’Rourke in action.  It was an entirely different campaign experience – one I’ll post about tomorrow.

Biden Has Left the Building!

On President’s Day, We Celebrate The Guardian of the Presidency

It is Presidents Day – a time to repost my traditional column commemorating the late, great Richard E. Neustadt. This year the post seems particularly timely, given President Trump’s decision to declare a national emergency in order to free up money to fund construction of a wall along the United States’ southern border with Mexico. Although Trump’s critics view the declaration as another sign of Trump’s authoritarian tendencies – a view consistent with many political science arguments regarding the effectiveness of unilateral presidential action, I suspect Neustadt would have a different reaction to Trump’s decision. He almost certainly would view it as a sign of presidential weakness – not strength. To understand why, it is worth reviewing Neustadt’s argument.

Until his death in 2003 at the age of 84, Neustadt was the nation’s foremost presidency scholar.  In his almost six decades of public service and in academia, Neustadt advised presidents of both parties and their aides, and distilled these experiences in the form of several influential books on presidential leadership and decisionmaking.  Perhaps his biggest influence, however, came from the scores of students (including Al Gore) he mentored at Columbia and Harvard, many of whom went on to careers in public service.  Others (like me!) opted for academia where they schooled subsequent generations of students in Neustadt’s teachings, (and sometimes wrote blogs on the side.)

Interestingly, Neustadt came to academia through a circuitous route that, unfortunately, is rarely used today. After a brief stint in FDR’s Office of Price Administration, followed by a tour in the military, he returned to government as a mid-level career bureaucrat in President Harry Truman’s Bureau of the Budget (BoB) in 1946, gradually working his way up the ranks until he was brought into Truman’s White House in 1950 as a junior-level political aide.  While working in the BoB, Neustadt took time to complete his doctoral dissertation at Harvard (working from Washington), which analyzed the development of the president’s legislative program.  When Truman decided not to run for reelection in 1952, Neustadt faced a career crossroads. With the doctorate in hand, he decided to try his hand at academia.

When he began working his way through the presidency literature to prepare to teach, however, he was struck by just how little these scholarly works had in common with his own experiences under Truman.  They described the presidency in terms of its formal powers, as laid out in the Constitution and subsequent statute.  To Neustadt, these formal powers – while not inconsequential – told only part of the story.  To fully understand what made presidents more or less effective, one had to dig deeper to uncover the sources of the president’s power. With this motivation, he set down to write Presidential Power, which was first published in 1960 and went on to become the best-selling scholarly study of the presidency ever written. Now in its 4th edition, it continues to be assigned in college classrooms around the world (the Portuguese language edition came out a few years back.) Neustadt’s argument in Presidential Power is distinctive and I certainly can’t do justice to it here.  But his essential point is that because presidents share power with other actors in the American political system, they can rarely get things done on a sustained basis through command or unilateral action. Instead, they need to persuade others that what the President wants done is what they should want done as well, but for their own political and personal interests.  At the most fundamental level that means presidents must bargain. The most effective presidents, then, are those who understand the sources of their bargaining power, and take steps to nurture those sources.

By bargaining, however, Neustadt does not mean – contrary to what some of his critics have suggested – changing political actors’ minds.  As I have written elsewhere, Neustadt does not mean that presidents rely on “charm or reasoned argument” to convince others to adopt his (someday her) point of view. With rare exceptions, presidential power is not the power to change minds. Instead, presidents must induce others “to believe that what he wants of them is what their own appraisal of their own responsibilities requires them to do in their interests, not his.” That process of persuasion, Neustadt suggests, “is bound to be more like collective bargaining than like a reasoned argument among philosopher kings.”

At its core, Presidential Power is a handbook for presidents (and their advisers). It teaches them how to gain, nurture and exercise power. Beyond the subject matter, however, what makes Neustadt’s analysis so fascinating are the illustrations he brings to bear, many drawn from his own personal experiences as an adviser to presidents. Interestingly, the book might have languished on bookstore shelves if not for a fortuitous event: after his election to the presidency in 1960, President-elect John F. Kennedy asked Neustadt to write transition memos to help prepare him for office. More importantly for the sale of Neustadt’s book, however, the president-elect reportedly was photographed disembarking from a plane with a copy of Presidential Power clearly visible in his jacket pocket.  Believe me, nothing boosts the sale of a book on the presidency more than a picture of the President reading that book!  (Which reminds me: if you need lessons about leading during a time of crisis, President Trump, I’d recommend this book. Don’t forget to get photographed while reading it!)

But it takes more than a president’s endorsement to turn a book into a classic, one that continues to get assigned in presidency courses today, more than two decades after the last edition was issued.  What explains Presidential Power’s staying power? As I have argued elsewhere, Neustadt’s classic work endures because it analyzes the presidency institutionally; presidential power, according to Neustadt, is primarily a function of the Constitutionally-based system of separated institutions sharing power.  That Constitutional grounding makes Neustadt’s analysis of continuing relevance.   And while many subsequent scholars have sought to replace Neustadt’s analysis with one of their own, for the most part they end up making his same points (although they often don’t acknowledge as much) but not nearly as effectively.

Neustadt was subsequently asked to join Kennedy’s White House staff but – with two growing children whom had already endured his absences in his previous White House stint – he opted instead to stay in academia.  He went on to help establish Harvard’s Kennedy School of Government, wrote several more award-winning books, and continued to advise formally or informally every president through Clinton. After the death of Bert, his first wife, he married Shirley Williams, one of the founders of Britain’s Social Democrats Party (and now a Baroness in the House of Lords), which provided still another perspective on executive politics.  He also continued churning out graduate students (I was the last doctoral student whose dissertation committee Neustadt chaired at Harvard.) When I went back to Harvard in 1993 as an assistant professor, my education continued; I lured Neustadt out of retirement to co-teach a graduate seminar on the presidency – an experience that deepened my understanding of the office and taught me to appreciate good scotch.  It was the last course Neustadt taught in Harvard’s Government Department, but he remained active in public life even after retiring from teaching.  Shortly before his death he traveled to Brazil to advise that country’s newly-elected president Lula da Silva.

What might Neustadt make of the Trump presidency?  That is a topic worthy of a separate post.  But I suspect that in contrast to many of my political science peers, who have expressed a fear that Trump’s authoritarian tendencies pose a threat to the Constitutional order, Neustadt would have a different concern:  that Trump’s inexperience – compounded by his initial decision to surround himself with equally inexperienced aides – has led to an exceptionally weak presidency, one unable to provide the energy and institutional stiffening that Neustadt believed was indispensable for making our system of shared powers work toward solving national problems.  To be sure, that weakness might yet lead a frustrated president to lash out against his political enemies, and to engage in extraconstitutional actions that could further weaken the presidential office. If so, my colleagues’ fears may yet be realized. For now, however, I suspect Neustadt would worry not that Trump’s presidency was too powerful – but that it was not powerful enough.

The recent emergency declaration perfectly illustrates Neustadt’s thesis. Trump issued it only after failing to persuade the Democratically-controlled House to fund his proposed border wall in the amount he requested, and after the nation endured a 35-day partial government shutdown that failed to gain Trump any additional traction. Although Trump might yet be able to use the emergency to reallocate appropriated money toward funding the wall, it is a potentially risky strategy – as are most instances in which presidents act “unilaterally” through “command” authority to achieve objectives. In this instance, Trump’s actions will almost certainly be challenged in court, and the long-run repercussions on his sources of influence are at best uncertain. All this is consistent with Neustadt’s warning that unilateral efforts to achieve presidential objectives are typically a sign of weakness, not strength and that in the long run they frequently undercut a president’s sources of bargaining power – particularly his public prestige and professional reputation, to say nothing of his formal powers. It remains to be seen how this latest effort to exercise command authority will play out, but I suspect it will prove costly to Trump in the long run.

In the meantime, take time today to hoist a glass of your favorite beverage in honor of Richard E. Neustadt, our own Guardian of the Presidency. If you are interested in learning more about him, there’s a wonderful (really!) book available on edited by Neustadt’s daughter and that blogger guy from Middlebury College (see here). It contains contributions from Doris Kearns Goodwin, Al Gore, Ernie May, Graham Allison, Ted Sorensen, Arthur Schlesinger, Jr., Harrison Wellford, Harvey Fineberg, Jonathan Alter, Chuck Jones, Eric Redman, Beth Neustadt and yours truly.

Here’s to you,  Dick!

The Danger in the Kavanaugh Vote

If the executive summary of the FBI investigation released by Senate Judiciary Chairman Chuck Grassley accurately captures the underlying FBI findings, it appears that Judge Kavanaugh is on track to be confirmed as the next Supreme Court justice, consistent with what I suggested in my previous post. We may know more regarding how the remaining undecided senators will vote after today’s cloture vote to end debate. If he does get majority support, his confirmation is likely to be on a near-straight party line vote, with most, if not all Senate Democrats voting against him.  It is understandable why they do so, and why Republicans will vote to confirm him.  It also poses potential risks to the future of the Court.

Why do Democrats oppose Kavanaugh if there is no clear evidence to corroborate Dr. Ford’s allegations of sexual assault?  Because he is a Republican, and is unlikely to rule in ways on the Court that most Democrats will find acceptable.  In fact, I suspect this fear has been the primary motivation behind Senate Democrats’ opposition all along. Republicans, of course, are motivated by similar political reasoning. However, because it is still viewed as unseemly to defend one’s confirmation vote on partisan reasoning, senators rarely if ever admit to this motivation.  And, in their defense, it is understandable why.  As an unelected body, the Court’s legitimacy depends in part on the fiction that justices are “priests in robes” who impartially decide cases based on legal reasoning and precedent.   As Judge Kavanaugh said in today’s Wall St. Journal op ed piece, “The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.”

But, of course, the Supreme Court is very much a partisan institution, in the sense that justices’ decisions in legal cases seem to generally fall along distinct ideological lines.   This is not always the case, of course, and other factors do influence judges’ decisions, but it happens enough that political scientists can discern clear voting patterns consistent with a certain ideological viewpoint.  Nonetheless, justices like Kavanaugh continue to insist that they vote in a nonpartisan manner.  As my Syracuse Law Professor and former colleague Keith Bybee argues, that hypocrisy serves a valuable function.   By portraying justices as “neutral” umpires who call “ball and strikes” according to some shared, widely-accepted view of the legal strike zone, it is more likely that the Court’s ruling will be accepted by the majority of people.  The alternative – to view judges as naked partisans – would risk delegitimizing the Court, and making it less likely that partisans from the other side will comply with Court edicts.

Alas, this legal fiction is in danger of being stripped away. As the parties have become better sorted, in which ideology increasingly lines up with party labels, we have seen both political parties engage in tactics designed to win popular support in order to gain an ideological majority on the Court.  This has led to increasingly bitter confirmation fights dating back at least to Reagan’s unsuccessful effort to appoint Judge Robert Bork to the highest court. The bruising battle regarding Kavanaugh’s confirmation is but the latest illustration of this trend.  Senators do so for an understandable reason: the Court, as an important political institution whose members sit for life, has the capacity to influence public policy for years to come. As a result it makes perfect sense to base one’s vote according to a justice’s perceived ideology. However, it is even better if a Senator can clothe that support or opposition in some higher principle – it cannot simply be about politics!  Instead, they claim to be voting on a more important issue: “This is a vote against a racially-based high-tech lynching!”  “This is a vote for women everywhere who have been sexually assaulted!”  Much of the opposition to Kavanaugh seems consistent with this approach, even if the logic seems at times somewhat tenuous.  For example, Democrats’ claim that Kavanaugh’s Senate testimony indicates he lacks the proper judicial temperament seems to ignore what his 11-year record on the bench tells about his judicial “temperament.”  Anyone truly interested in assessing this aspect of his demeanor would be combing his actual judicial behavior across the previous decade, rather than basing a conclusion on what he admits was a deeply emotional response to what he perceived to be as unfounded attacks on his family name.  It certainly suggests that Democrats are not really opposing him because of questions regarding his temperament.

To be sure, senators may even convince themselves that this high-minded principle is their primary motivation.  Even if they do not, it makes perfect political sense to adopt this public posture, if for no other reason than to sway public opinion.  The risk, of course, is that if the argument seems increasingly out of step with the facts, or as a blatant political move (see Republican opposition to Merrick Garland) as perceived by the general public (as opposed to activists on both side) the “principled” stand may impose a political cost.  We shall see if either party pays a price in the upcoming midterms.  Early indications are that the Kavanaugh controversy may have energized Republicans, raising their interest in the midterm election to that of Democrats’.

However, there is a bigger worry.  It is that these partisan-driven confirmation battles pose a long-term risk to the Court’s perceived legitimacy.  In that regard, there is some evidence that approval of the Court has declined in the last two decades, at least as measured by survey data.

So far, however, that disapproval has not manifested itself in outright refusal to abide by the Court’s rulings. There is no guarantee that this support will persist in the face of obvious evidence that the Court is, first and foremost, a political institution driven primarily by partisan rulings.   Some veneer of “principled” reasoning is crucial to its continued public support.   Chief Justice Roberts, who is likely to become the new swing vote on the court in closely decided decisions, seems to recognize this and there is some evidence suggesting it has driven his vote when the Court is closely divided.  Is it enough to save the Court’s reputation as an impartial arbiter of constitutional issues?  We shall see.

So far, we remain committed to the belief that we are a government of laws, and not of men and women.  May it always be so.

The Truth About the Ford-Kavanaugh Confirmation Hearing

In response to multiple emails from current and former students, and others, here are some initial and admittedly impressionistic thoughts regarding the Kavanaugh confirmation hearings.  As senators Feinstein and Harris were quick to remind Ford, and their audience, yesterday was not a criminal trial.  If it were, the proceedings would have ended quickly. There is no evidence that a crime was even committed – at least not enough to bring a legal indictment, never mind determine who is the guilty party.  But the Senate hearing was not intended to determine the “truth” of Ford’s allegations, or Kavanaugh’s denials.  Nor, contrary to Feinstein’s claim, was it a “job interview” to determine whether Kavanaugh was qualified to serve on the Supreme Court. Instead, the hearing was designed to provide political cover for senators of both parties to vote the way they wanted to vote before the hearings began.  All they asked was for their witness to appear credible enough to allow them to cast a vote that could be defended back home, with their constituents.   And, in my view, and consistent with the responses I am getting from “normal” people who watched bits and pieces (or even more) of yesterday’s proceedings (I use “normal” in the statistical sense), both Ford and Kavanaugh cleared the bar.  Put another way, if you went into yesterday’s hearings believing Kavanaugh was guilty, I am quite sure you came out of it convinced you were right.  I suspect that among his defenders there was a similar reaction – “I thought he was innocent, and yesterday proved me correct.”  And for those of you who were genuinely undecided?  I doubt yesterday clarified anything, and that you are still undecided.  Yes, I am fully aware of the inconsistencies in the testimony of Kavanaugh and Ford that advocates on both sides are eagerly rehashing on social media.  It’s funny how those inconsistencies always seem to reinforce one’s prior dispositions!  Indeed, as I remarked on twitter yesterday, I’ve yet to hear from one person who said that they had changed their views after listening to the testimony by both parties.

When I make this argument, students often respond with, “Ok, but what do you think?  Is he guilty or not?”  My response is that I have a pretty strong belief regarding whether he is guilty.  But I also recognize that my belief is not based on any evidence, but instead reflects a gut instinct based on poorly-informed theories of human behavior that may or may not apply here. And guess what – reams of science reminds me that one’s “gut instinct” and “intuition” is often quite wrong; frequently it serves as a manifestation of underlying predispositions that lead one to engage in confirmation bias.  Put another way – I recognize that no matter how strong my belief, it is not rooted in any objective assessment of the relevant facts (of which there are almost none), and therefore it is of no value in this debate.

So where do we go from here?  If my assessment is right – if yesterday’s testimony provided adequate cover for senators to vote their partisan preferences – I suspect Kavanaugh will be confirmed on a near-straight party vote.  As I write this, media sources are reporting that Jeff Flake will vote yes.  Given their political leanings, I’m guessing Collins and Murkowski will do so as well, and would not be surprised if Manchin and Donnelly cross party lines, given the tough political fight they are facing.  As I tweeted yesterday, however, the actual hearing was only the start of the political fight.  Much depends on how the media reports that hearing – what sound bites will they use?  Visuals?  And there is the added layer of extremist voices in social media that may play a role in framing the debate.

Several pundits have speculated that if he is confirmed, Kavanaugh’s palpable anger at this confirmation process will spill over into his decisions in a way that will cause him to rule against the Democratic party’s preferences.  I find this highly implausible, mostly because – as I indicate below – Kavanaugh was always likely to rule in ways that Democrats would find unacceptable regardless of how smooth the confirmation process went.  If you want a clue regarding how Kavanaugh will judge, you need only to look at his prior judicial record.  (Note: use these scores with caution – they depend heavily on the issues that came to a vote during Kavanaugh’s time on the court, among other caveats.)

A final thought. Many activists, particularly those backing Ford, think this confirmation fight will somehow damage the long-term legitimacy of the Court, particularly if Kavanaugh is confirmed.  I disagree. That view is based on a willfully misleading impression of the court as a decision-making body composed of priests in robes who divine the “truth” through careful consideration of legal principles.   But decades of social science research paints a different picture.  Justices are partisan in robes, who interpret ambiguous language in ways that are consistent with their political preferences.  Yes, we all are willing to adopt the pretense that the Court is above politics, and I think that fig leaf serves a useful purpose by providing a sheen of legitimacy to court rulings, and compensating for the fact that once confirmed they are not accountable to the people.  But partisans on both sides understand the true nature of the Court, and the Kavanaugh confirmation battle will only reinforce what they already know, which is that elections matter, and whichever party has the votes in the Senate will use them to tilt the Court toward their preferred political direction.  It has always been thus, and it will always be so.

And for those lamenting Kavanaugh’s confirmation – if he is confirmed?  Note that our best guess, based on his record to date (see above) is that Kavanaugh will vote in ways that make him much closer to Thomas, and the right wing of the Court, than to Kennedy’s relatively more centrist views.  However, this will likely make Chief Justice Roberts the new swing voter on many issues, replacing Kennedy in that role.  And Roberts is, at heart, an institutionalist very concerned with protecting the Court’s perceived legitimacy and public standing.  This makes it highly unlikely, in my view, that he will support decisions, such as repealing Roe v. Wade, that run counter to prevailing public opinion.   That may provide small comfort to those who believe Ford’s testimony, and who are convinced there is no place on the Supreme Court for a man like Kavanaugh. To you, I say, use that anger constructively – by voting.  Control of the Senate – and likely of the federal courts – is at stake.

The “Gay Cake” Supreme Court Decision: Not A Judicial Masterpiece

Martin Naunov, Middlebury class of ’17, used the Masterpiece Cakeshop case in his senior honors thesis to explore the potential conflict between equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech.  Here he reacts to the Supreme Court’s decision, handed down on Monday, in the Masterpiece case.

On Monday, the U.S. Supreme Court handed down its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the same-sex wedding cake case. The decision? Far less sweeping than some had hoped but not as distinctly insignificant as some others maintain.


As I have explained in greater detail in an earlier post, Masterpiece invited the Court to strike a balance between two exalted, but sometimes conflicting, principles: equal treatment or anti-discrimination on one hand and free exercise of religion on the other.

The substantive questions that the case presented can be stated as follows: Does the Constitution require that religious wedding vendors be exempted from the scope of the public accommodation laws? Does compelling a wedding vendor—say a baker, a florist, or a photographer—to provide their wedding services on equal basis irrespective of the customer’s sexual orientation contravene the Free Exercise or the Free Speech Clause of the First Amendment?

As most newspapers’ headline make clear, the 7-2 Masterpiece majority sided with the religious baker. What these headlines make less clear, however, is that in actuality, the Court sided with no one on the substantive questions. Monday’s decision did not settle the tension between freedom of speech and religion and non-discriminatory treatment of the historically marginalized LGBT community.

The Court, in other words, did not answer the question whether wedding vendors have the First Amendment right to decline services for same-sex wedding ceremonies; and to the extent that it did, the answer is in the negative. Although “religious…objections are protected,” the majority opinion affirmed, “it is a general rule that such objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ministerial exception can be assumed, the opinion continued, “yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws.”

The Court sided with the baker by equivocating. Justice Kennedy hedged on the question whether Mr. Phillips had a First Amendment right to decline his services for same-sex weddings; however, Mr. Phillips certainly had the First Amendment right to “neutral and respectful consideration” of his religious liberty claims. This principle, the Court found, was “compromised” by the Colorado Civil Rights Commission’s “treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The inference of religious animus was twofold. First, the Court found unacceptable certain remarks made by some of the commissioners. According to one of the commissioners, for example, “we can list hundreds of situations where freedom of religion has been used to justify discrimination…whether it be slavery, whether it be the holocaust…And to me it is one of the most despicable pieces of rhetoric that people can use…to hurt others.” I suspect many people—religious people like myself included—would find this remark to be largely innocuous and perhaps fair, even if somewhat overstated. To the Court’s swing Justice, however, it was unacceptable—clear evidence that the Commission’s deliberation was tainted by religious animus.

It may merit mentioning that conservative newscasts have been fulminating against the above remark long before Monday. In fact, when I talked to one of Mr. Phillips’ lawyers after December’s oral arguments, this comment was one of the very first issues she brought up.

In any event, the Court found another sign of religious animus in the discrepancy in the Commission’s treatment of Masterpiece versus three other cases where bakers declined to create cakes with religious text and images condemning same-sex marriage. A rationale might exist, the majority acknowledged, to differentiate these cases. Therefore, the issue is not the constitutional soundness of the differing outcomes—the other three bakers, unlike Mr. Philips, prevailed—but, rather, the differing level of respect with which the bakers’ conscience objections were treated. Namely, in Masterpiece, the Commission approached differently the element of attribution—Is the baker merely ‘a conduit’ of their customer’s message or is the message attributable to him? —and the argument that the bakery was willing to sell other products to the rejected customers.


Although constrained in its capacity to serve as a precedent in deciding the substantive questions in other cases of LGBT discrimination by wedding vendors, Masterpiece could prove to be nontrivial in its interpretation of Smith. This element—the Court’s treatment of Free Exercise doctrine—seems to have eluded many legal commentators.

Smith, which controls Free Exercise jurisprudence, pronounced the following rule for determining whether the challenged regulation contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” In other words, according to Smith, as long as the law in question is a neutral law of general applicability that does not target a specific religion or religious practice, it should be reviewed under the “rational basis” standard.

The Smith decision did not, however, mean that the Court would absolve from strict scrutiny those laws that are not neutral or generally applicable. The Court made this clear in Lukumi, the precedent that the majority opinion in Masterpiece largely relies on.

In Lukumi, however, it was the very purpose of the law that was tainted by religious animus. Namely, soon after Santeria followers—known for practicing animal sacrifice—expressed an intent to establish a church in Hialeah, Florida, the city council enacted three ordinances that banned the sacrificial killing of animals. The city argued that the ordinances aimed to protect the public health and prevent animal cruelty. However, the ordinances banned almost exclusively Santeria rituals. Florida permitted almost every type of animal killing (e.g. for medical research) except for religious sacrifice; even with ritual killings, it exempted the ritual slaughter of animals by some other religions, such as kosher slaughter. It was obvious that the goal of the ordinances was suppression of Santeria religion’s central component. Hence the Court struck it down.

No such situation is present in Masterpiece. Public accommodation laws do not belong to the “purposeful discrimination” category that the Court found in Lukumi. Colorado’s Anti-Discrimination Act (CADA) does not condone discrimination on the basis of sexual orientation by one religion (say Muslims) but not by another (say Jews). The law applies to both home-based bakers and those who have a stand-alone store; it applies to both luxurious restaurants and Safeway stores.

The Court’s Masterpiece analysis, therefore, which subjected a formally neutral law under a level of scrutiny clearly harsher from the extremely deferential rational basis test required by Smith, is a milestone in its own right. It is possible that Masterpiece would amount to an anomaly, but the “gay cake case” could also prove to be an important precedent in future religious liberty cases. Somewhat paradoxically, this largely depends on whether the conservative-leaning Court decides to move away from Justice Scalia’s emphasis of formal neutrality and closer to Justice Brennan’s requirement for substantive neutrality—one that is concerned not only with the purpose of the challenged law but also with its application and effects on conscientious objectors.

Masterpiece, to conclude, ended up being quite insipid, but it did give Smith some bite.