Masterpiece Cakeshop v. Colorado Civil Rights Commission appears to be the Supreme Court case garnering the most public attention this term. The question in the case is whether a baker’s First Amendment rights (free speech and/or free expression) are violated when a law compels him to bake a cake for a couple in violation of his sincerely held religious beliefs. This post attempts to discern (at least speculative) case outcome(s) from what the justices said during oral argument.
A previous post on this site looked at the substance, especially in terms of case citations, of the parties’ and amicis’ briefs. The top cited case in the briefs was Kennedy’s majority opinion in the case that legalized same-sex marriage across the nation: Obergefell v. Hodges. Perhaps not surprisingly for folks that have been following Masterpiece Cakeshop, many of the arguments seem tailored towards Justice Kennedy’s vote. Justice Kennedy’s vote is seen as the tie-breaker if the Court’s ideologically polar sides split their votes 4-4 as many expect they will.
So what did the justices convey during oral arguments? Text analysis of the oral argument transcripts provides a few insights. Previous studies on the subject show that the justices tend to vote against the party they place more focus on more during oral arguments. Oftentimes, findings from such analyses line up with theoretic expectations.
The two justices that spoke the most in Masterpiece Cakeshop oral argument are the two currently most active speaker/justices during oral arguments generally: Justices Breyer and Sotomayor.
When this is broken down section by section, it becomes clear that the bulk of Justice Sotomayor’s speaking was during the petitioner’s argument.
Justice Breyer spoke primarily during the respondents’ arguments although he spoke a reasonable amount during each argument section. To look at where the justices chose to focus their energies, the next chart shows the percent of each justices’ total speech in each argument section.
Here, more of the justices’ speaking patterns line up with their expected positions on the merits. In particular Justices Sotomayor, Kagan, and Ginsburg were all quite active during petitioner’s and amicus’ arguments (the United States supported the petitioner as amicus curiae). On the other side of the coin, Justices Alito, Gorsuch, and Roberts spoke predominately during the two respondents’ arguments. So far the speech patterns fall in line with voting expectations; that is, Justices Roberts, Gorsuch, and Alito are expected to vote in favor of the petitioner’s position while Justices Kagan and Sotomayor are expected to vote in favor of the respondents.
Justice Breyer spoke during all argument sections, and often in lengthy utterances, and this increases the difficulty of making prediction based on his utterances. His individual talking turns as well as those of the other justices are depicted in the graphs below that track the length of speech of all participants during both respondents’ arguments.
Justice Breyer’s potential position is perhaps better illuminated by the tenor of his questions during the petitioner’s argument. He appeared troubled, for example, about petitioner’s line drawing for when a work deserves First Amendment protection for free expression.
Assuming that Justice Breyer votes alongside his liberal colleagues and that Justice Thomas, although silent during oral arguments, votes alongside the more conservative justices, then the swing vote would come down, as expected, to Justice Kennedy.
Justice Kennedy is quite the enigma in this case. Given his prior positions in favor of expanding same-sex couples’ rights in Obergefell, Lawrence v. Texas, and other cases, many expect him to side with the respondents and against the cake maker. Much of the evidence from oral argument points to the possibility that Justice Kennedy will vote against the same-sex couple in this case. Pundits were quick to point out, for instance, that the tenor of Justice Kennedy’s questions was more favorable to the baker’s position as they are in the example below from state respondent’s argument.
The empirical evidence corroborates such assumptions. As the second and third charts in this post show, Justice Kennedy predominately spoke during the respondents’ arguments, although he was somewhat balanced across the board.
Sentiment analyses, on the other hand, highlight Justice Kennedy’s more positive tone during respondents’ arguments as compared to petitioner’s.
These sentiment analyses, which are admittedly quite rough as they are based on words in isolation rather than in context and on a small sample of total words, depict a positive tone above zero and a negative tone below zero. While Justice Kennedy’s sentiment is above zero during the state respondent’s argument, it is at or below zero during petitioner’s and amicus’. Significant to this analysis, each of Justice Kennedy’s utterances (depicted as bubbles by his name) were on the negative side during petitioner’s and amicus’ arguments. Most of the other justices’ sentiments are varied across the entire range.
While Justice Kennedy clearly expressed reservations about the respondents’ position, the negative tone from the analyses was apparent in Justice Kennedy’s interaction with arguing amicus Solicitor General Noel Francisco.
Here, Justice Kennedy addressed how a ruling in petitioner’s favor may undo some of the policy set in place following the Obergefell decision. In another instance Justice Kennedy questioned the repercussions of petitioner’s actions for the gay community:
Clearly Justice Kennedy is troubled by the potential downstream effects from a resolution in either parties’ favor.
Examining the exact words Justice Kennedy used provides another take on his possible position. The wordcloud below created from Justice Kennedy’s speech during oral arguments depicts the words he used more frequently in larger typeface.
Many of the larger words are not valenced one way or the other including “cake,” “case,” “well,” etc. Other words get at the some of the possible sticking points for Justice Kennedy including “hostility,” “disavow,” “exceptions,” “position,” “tolerance,” and “discrimination.”
This is a weighty decision for Justice Kennedy and one that very well might affect his legacy on the Court. Justice Kennedy conveyed this weight in the questions he asked and in the words he used. While history may point Justice Kennedy in one direction, he expressed clear reservations about the couple’s position during oral arguments.
What does all of this mean? While Justice Kennedy’s position is anything but clear, I tend to agree with Slate’s Mark Joseph Stern that Justice Kennedy may vote in favor of the respondents, at least in terms of the free speech question. The religion question very well may be the one Justice Kennedy is having a more difficult time reconciling. If Justice Kennedy cannot find his way to one side of the fence or the other, this question may be remanded to the Colorado Civil Rights Commission.
The justices’ oral argument behavior in cases like Masterpiece Cakeshop provides insight into their decision-making. For some justices it provides clear pictures as to how they might vote, while for others less so. Justices that are truly conflicted about case outcomes, often do not empirically fit cleanly into a bucket supporting one party or the other. In such instances, information extraneous to the case transcripts often helps to create a picture of how a justice might decide, just as such information is useful in understanding Justice Kennedy’s potential position when the Court ultimately rules in Masterpiece Cakeshop.
On Twitter: @AdamSFeldman
Analyses performed with the aid of the qdap package in R-Markdown.