(June 17) Whether for good or for ill, three court decisions in the past two days make clear that Chief Justice John Roberts’s “Let’s Make a Deal” regime continues to predominate in American jurisprudence.

Don’t be fooled by the headlined “results” in a challenge to the Affordable Care Act or religious liberty cases about a cake maker and a foster care service. Concentrate on this: The parts of the legal community left in the cold here are the conservatives wishing, with Justice Samuel Alito, for more definitive constitutional decisions rather than narrow procedural or technical rulings. From a legal standpoint, very little in the Roberts regime ever seems final; instead, the courts invite seemingly endless rounds of judicial hair-splitting.

In each case, a legitimate argument might be made for punting away the bigger constitutional questions. The undeniable pattern of punting, however, continues to frustrate constitutional conservatives’ hopes.

To understand that frustration, first consider this week’s decision not by the Supreme Court but by a Colorado judge doing an end-run around an earlier Supreme Court decision. The issue is now famous: Cake artist Jack Phillips creates confections for any customer in general but reserves the right to refuse to bake products that imply endorsement of particular messages he believes are contrary to his faith. Colorado activists and authorities, though, insist he must bake cakes celebrating “progressive” positions in the gender-bending wars.

The Supreme Court already ruled once in Phillips’s favor, but, very much to the point here, on narrow grounds. Rather than wholeheartedly affirming Phillips’s religious liberty claims, the court in 2018 instead ruled merely the particular process used, and attitudes expressed by a Colorado reviewing board demonstrated illicitly overt hostility to his faith. However, the court did not answer the central question of how fundamental Phillips’s religious rights are in and of themselves…. [The full column is at this link.]


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