Is a Recipe for Justice Kennedy a Recipe for Success?

The puns are endless with a case that goes by the name Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The stakes though are no laughing manner. If the Court decides all of the issues brought up in the case, boundaries of the First Amendment doctrine may be rewritten as could the defining lines between religious and same sex couples’ rights.  In this way what started out as a dispute over baking a wedding cake may very well have substantial national ramifications.

The decision in the case, however, may not reach such issues.  An amicus brief written by First Amendment scholars, Professors Eugene Volokh and Dale Carpenter on behalf of the American Unity Fund makes a compelling argument that “[t]he First Amendment shields refusals to speak, but generally not refusals to do things.”  Based on this reasoning, there may be a distinction for First Amendment purposes between a request to bake a generic wedding cake and a request to bake a cake that “convey[s] a particularized message that would likely be understood by those who view it.”  Since the request in this case was for the former, negotiations between the parties may never have entered the realm of protected speech.

The major players in this case are not sitting on their laurels though on chance that the justices do not reach the merits of the case.  To the contrary, 95 amicus briefs were filed on the merits by groups supporting both the cakes shop and the couple. The breakdown of the amicus filings is fairly even with 47 briefs for the cake shop, 45 briefs for the couple, and three briefs supporting neither party.  The amicus and merits parties both appear geared up to fight for Justice Kennedy’s vote with both groups most likely presuming that the other eight justices’ votes are (1) fairly predictable and (2) unlikely to be swayed.

There is good reason for this belief.  The Court has long divided along political and/or ideological lines in cases dealing with same sex couples’ rights.  This includes when Court ruled in the 1986 case Bowers v. Hardwick, that sodomy was not a protected constitutional right.  The case split the justices 5-4 with the more conservative Justices Burger, White, Powell, Rehnquist, and O’Connor in the majority, and the more liberal Justices Brennan, Marshall, Blackmun, and Stevens in dissent.

This trend continued with the 1996 case Romer v. Evans where a different composition of justices moved in the opposite direction.  In this 6-3 decision, the Court struck down a Colorado Constitutional Amendment that prevented same sex couples from receiving protection against discrimination.  Justice O’Connor supported the rights of same sex couples in this decision along with Justices Kennedy, Breyer, Souter, Ginsburg, and Stevens.  Justices Rehnquist, Scalia, and Thomas dissented.

After Romer, Justice Kennedy authored the majority opinion in Lawrence v. Texas (2003), the case that overturned the decision in Bowers v. Hardwick. with the same split in the justices’ votes.  Justice Kennedy also authored 5-4 decisions in United States v. Windsor (2013) and in Obergefell v. Hodges (2015). Both of these cases saw Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan in the majorities and Justices Roberts, Scalia, Thomas, and Alito in dissent.  With the only subsequent shift in the Court’s composition the loss of Justice Scalia and the addition of Justice Gorsuch, many assessments predict Justice Gorsuch will follow Justice Scalia’s course and Masterpiece Cakeshop will be decided by Justice Kennedy’s vote.

The briefs in this case appear in accord with this view.  Justice Kennedy joined the Court during the 1987 term.  Looking at all of the cases cited in the briefs with decisions coming in the 1987 term or later, Justice Kennedy’s majority opinions are cited more than those of any of the other justices.  This is a logical outcome of the opinions Justice Kennedy authored, but perhaps there is something more.  If attorneys in this case are focused on Justice Kennedy’s vote, it also makes strategic sense to target him with the briefs, citing his decisions and showing why they are more in line with or are different from the decision at hand.  The strategy behind citations can be vastly more complex than for the two aforementioned reasons.  Even these rationales though point to citation usage that is forward-thinking.  This forward-thinking nature may very well have contributed to the propensity of lawyers in the case to cite Justice Kennedy’s opinions and possibly more so than they would have based on past decisions reciting precedent alone.

It may come as no surprise that focusing on decisions since the 1987 term, four of the ten decisions cited in the most briefs filed in the case (including the 95 amicus briefs and the three main merits briefs from the parties) are the four previously mentioned decisions Justice Kennedy authored.



The remaining six cases deal with same-sex couples rights along with First Amendment concerns.

  • Hurley was a Souter decision that held private parade organizers had a First Amendment right to decide on the which messages they wanted to convey through the parade.  The group that sought participation in the parade (and was ultimately denied participation) was the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB).
  • The Hobby Lobby decision authored by Justice Alito held that the Religious Freedom Reformation Act (RFRA) allowed closely held corporations First Amendment protection releasing them from the contraception requirement under the healthcare mandate. * Note: a major distinction between Hobby Lobby and Masterpiece Cakeshop is the absence of a state RFRA in Colorado.
  • Employment Division v. Smith was a decision by Justice Scalia where the Court held that a state could deny unemployment benefits to workers fired for using illicit drugs when the workers asserted their First Amendment Free Exercise rights as protection for the drug use.
  • In Rumsfeld v. FAIR the Court held with an opinion by Justice Roberts that the Solomon Amendment which allowed the government to withhold federal funds from colleges that do not allow military recruiters was constitutional under the First Amendment as it regulated conduct and not speech.
  • The Court in Church of Lukumi, with an opinion by Justice Kennedy, held that an ordinance directed at religious institutions that prohibited ritual animal sacrifices violated the First Amendment’s Free Exercise Clause.
  • Justice Rehnquist authored the Boy Scouts of America v. Dale majority opinion where the Court held that the Boy Scouts were afforded First Amendment protection to bar homosexuals from serving as group leaders. Justice Kennedy sided with the Court’s conservative justices in the Court’s majority upholding the Boy Scout’s exclusionary practice.

Looking at this same set of cases (those authored after the 1986 term) but expanding beyond the ten most cited cases, the appeal to Justice Kennedy’s decisions is even more pronounced.  This is clear in the following chart showing the number of briefs that cited Supreme Court majority opinions authored during or after the 1987 term.


* PC refers to anonymously authored per-curiam decisions

Even Justices that served on the Court for a similar length of time to Justice Kennedy such as Justices Scalia and Thomas have nowhere near as many case cited in the Masterpiece Cakeshop briefs.  While this speaks to the applicability of Justice Kennedy’s previous decisions, it also highlights the importance of how Justice Kennedy’s prior decisions are characterized.

The next analysis parses the citations by the side each brief supports in Masterpiece Cakeshop. The following looks at cases decided after the Court’s 1986 term cited in at least ten briefs for either (these charts do not count briefs on behalf of neither party).


Many of the cases in the first chart in this post including Obergefell, Boy Scouts of America v. Dale, Church of Lukumi, and Employment Division v. Smith were cited by a similar number of petitioner and respondent briefs.  Others like Windsor and Lawrence were only cited by briefs supporting respondents.

Other cases in this chart that were cited by only one side include:

While the extent of the Court’s ultimate decision in this case is difficult to predict, the generalized litigation strategy is not.  Based on the belief that Justice Kennedy’s vote will ultimately decide the case, both sides are attempting to garner his vote and to help dictate the potential policy shift inherent in the decision.  Even with multiple possible outcomes in the case not hinging on Justice Kennedy’s vote, it appears safe to say that those deeply involved in the case are not directing equal attention to these other possibilities.

On Twitter: @AdamSFeldman

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