By a 7-2 vote (Ginsburg and Sotomayor dissenting), the Supreme Court today invalidated a federal law prohibiting states from legalizing sports betting. Amy Howe of SCOTUSblog explains:
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The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. Today the justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.”
Over on the left, at Think Progress, Ian Millhiser largely concurs with this assessment, and goes into some detail about why.
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ICE may still lawfully target immigrants in such sanctuary cities, but they must use their own resources will not receive help from local cops.
Under the anticommandeering doctrine, state and local governments have an absolute right to refuse such assistance to ICE agents. Moreover, while the anticommandeering doctrine does permit the federal government to withhold certain federal grant funding from sanctuary cities, the Trump administration’s efforts to do so have, at least so far, been amateurish and unlikely to survive in the federal courts.
Full disclosure—I had never heard of this doctrine until today, and I don’t have strong feelings about this case, though it’ll be interesting to see what states do with it. What caught my eye, and caused me to breathe a partial sigh of relief, was that Samuel Alito wrote the decision. This means he is almost definitely NOT writing Masterpiece Cakeshop, the one where the conservative Christian bakery owner won’t make wedding cakes for same-sex couples. The author of that decision, we can be 99% sure, is Anthony Kennedy.
The image from SCOTUSblog can help explain why. I tried to copy it over but it wouldn’t work. Basically, the justices divide opinion-writing as evenly as possible over every month of the term. In December, 10 cases were argued, including Masterpiece Cakeshop. This means that one justice should get 2 opinions from that month’s cases, while the other eight all get one apiece. Seven of the 10 had been released before today, and Gorsuch got 2.
As of this morning, the three remaining cases from that month were: sports betting, a cell phone privacy case, and Masterpiece Cakeshop. And three justices had not written: Roberts, Kennedy, Alito. So we could assume one of them was writing each of these cases.
The consensus at SCOTUSblog, some of the only prognosticators worth listening to (they aren’t always right but they often are), is that Roberts will write the cell phone privacy case, Carpenter v US. He has written at least one very similar decision in the recent past (Riley v California), and referenced this case at argument as a point in favor of Carpenter. Roberts (and the liberals) may have actually been more supportive of Carpenter’s points than Kennedy, and given the tenor of the argument and Roberts’s history, assuming that he will write this decision is very, very reasonable.
Before this morning, that would have left Kennedy and Alito with sports betting and Masterpiece Cakeshop, in some order. There was good reason to think that if the conservatives were going to issue a broad ruling eviscerating anti-discrimination law and granting special privileges to conservative Christians, they would call on Alito. He has proven himself singularly adept at twisting the law to suit his political ends—even on this Court, he stands out. Look at Ledbetter, Knox v SEIU, Harris v Quinn--the latter two are where he twisted things to set the stage for killing off labor unions later this year. And most of us probably know Ledbetter, where he perverted the law to deny a woman justice after she’d been a victim of pay discrimination for decades.
And importantly, Alito wrote Hobby Lobby, the antecedent of Masterpiece Cakeshop. The Court held, for the first time, that religious freedom could be used as a cudgel to restrict other people’s rights and to evade a law of general applicability. Alito skillfully dressed this broad ruling as a narrow one, which it wasn’t. If the Court were going to pull similar crap in Masterpiece Cakeshop, it would make sense to assign that task to Alito again. Plus, Alito has made his very strong feelings on this matter quite clear. It’s eminently possible he would have actively lobbied to write the decision (technically, it’s Roberts’s call—if the chief is in the majority, he assigns the opinion. So it would have been his choice to give Alito an assignment like this). But Alito wrote the sports betting one—so evidently he has not been assigned the task of Masterpiece Cakeshop. Which should come as a relief to anyone who cares about LGBT rights and equality.
Ian Millhiser made similar arguments about Alito before, in the context of King v Burwell: thinkprogress.org/...
Since Roberts very likely has the cell phone case, Kennedy almost certainly has Masterpiece Cakeshop. Now, could he have sought it out, too, and written something that could gut anti-discrimination law? Absolutely. It’s just less likely with him than with Alito. Remember, he wrote concurrences in which he tried to narrow the scope of Hobby Lobby and Parents Involved v Seattle, which struck down a school integration plan. And he has been far more sympathetic to gay rights than to women’s or minority rights.
Of course, we should remember that Kennedy was sympathetic to the bakery owner at oral argument. He could well disappoint us on this one. He was also, however, the only conservative to express any sympathy for the gay couples. His issue mostly had to do with a comment by one of the Colorado civil rights commissioners, about it being “despicable” to use religion to justify discrimination. Kennedy, himself a devout Catholic, was clearly offended by that statement. Questioned whether the state had been “tolerant” of the baker’s beliefs. His worst statement was “There are other shops.” In the 60s, it would have been, “There are other lunch counters.”
Of course, he has also written every significant decision that advanced LGBT rights. A ruling for the bakery owner would seriously undermine that legacy. And no doubt Kennedy is well aware of that.
So for that reason and others, Kennedy is less likely than Alito to eviscerate anti-discrimination law. One route he might take is this: vacate and remand. Order a new hearing and order the recusal of the commissioner who made the statement that he found offensive. Would allow the baker to save face but probably keep LGBT rights safe as well—the baker would probably lose a rehearing, too, and civil rights commissioners would probably just have to watch what they say but could still enforce anti-discrimination law.
Ideally, of course, we’d get a clear decision that emphasizes the baker cannot discriminate. It’s still possible we could get that, with Kennedy writing. Not certain by any means, but he’s far more likely to preserve LGBT rights than Alito. Ian Millhiser:
I largely agree with Millhiser, and would add that I suspect a broad ruling eviscerating anti-discrimination law would have been more likely to go to Alito than Kennedy. I could be wrong about any of this, but I still can’t deny feeling greatly relieved at waking up and finding that it will very likely be Kennedy, rather than Alito, writing Masterpiece Cakeshop. I hope I’m right, and I hope Kennedy preserves LGBT rights.
And by the way, as to the arguments that a Muslim or an Orthodox Jew could be forced to sell pork, or a Hindu forced to sell beef, etc—no. But if they choose to do so, they can be required to sell it equally to ALL their customers, not just, say, Christians. Or atheists. It’s one thing for a bakery owner to say, “Sorry, I don’t make wedding cakes, period.” It’s quite another for him to say, “Sorry, I don’t make wedding cakes for your kind of people.” The latter is what is at issue in this case.