December 10, 2018, revealed something about the Court: It will be conservative in some ways, but probably not on social issues.
In “The Supreme Court as Republican Schoolmaster,” Ralph Lerner showed how justices in the early Supreme Court tried to educate the people in the civic virtues needed for a republic. They felt the truth of Alexis de Tocqueville’s claim that “The power of Supreme Court justices is immense but it is a power springing from opinion. They are all powerful so long as the people obey the law. They can do nothing when they scorn it.”
As a result, when justices rode circuit, they were conscious of the importance of shaping popular opinion. Their charges to juries in cases where they sat as trial judges thus “were a cross between a political sermon and a speech from the throne.” They ranged far from the specifics of the controversy to describe the qualities a citizen needed to assure that the republic remained stable and prosperous. These virtues included self-restraint, honesty, industry, and prudence. Note that these jury charges did not make much law: their legal content was bound up in the particulars of a case soon forgotten. Their more important function was to sway the minds of the audience to embrace the essentials of republicanism.
This is the perspective that makes sense of the Supreme Court’s decision in Masterpiece Cakeshop. There the Court avoided the broad free speech and free exercise claims and ruled instead very narrowly for the baker on the ground that some members of the Colorado Human Rights Commission had made anti-religious statements in dismissing the baker’s arguments. The majority opinion made little law, and it is hard to imagine that many decision makers will be so foolish as to repeat the kind of sentiments expressed by those commissioners.
But it did give Justice Anthony Kennedy the occasion to sermonize about what he sees as virtues essential to the modern republic: the dignity and respect that people are owed in both the identity of their sexual orientation and their religion—the kind of dignity that the commissioners offended.
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.
It is striking that six justices of widely varying views signed onto his opinion and the two dissenters signaled their substantial agreement with these general sentiments. The justices may be worried that the culture wars are a threat to the cohesion of society and ultimately their own authority. That this case makes little law is actually part of the point: a decision more clearly in favor of one side or another would distract from the audience’s attention to the sermon.
I am not defending the Supreme Court’s view of its function, but across two centuries this sermonizing function is similar, even as what the Court sees as essential to republican virtue has changed.