Amicus With Dahlia Lithwick | "Why the Cakeshop Case is So Delicious"

Date: November 25, 2017
Host: Dahlia Lithwick
Guest: Adam Liptak (Supreme Court reporter, The New York Times)

Episode Overview

This special Thanksgiving edition of Amicus revolves around the Supreme Court case “Masterpiece Cakeshop v. Colorado Civil Rights Commission,” exploring why this particular case has captivated the public, the legal community, and the Court itself. Host Dahlia Lithwick and Supreme Court reporter Adam Liptak offer an in-depth discussion about the legal stakes, the unique facts of the case, the First Amendment disputes at its core, the impact of the Trump administration’s shifting Justice Department positions, and broader reflections on the Supreme Court’s role and culture in turbulent political times.

Key Discussion Points & Insights

1. Why Masterpiece Cakeshop is a Big Deal

• Accessibility and Resonance: Unlike many Supreme Court cases, the facts are easily grasped by the public, and the legal stakes are immediately apparent (01:46).
  • Quote (Adam Liptak, 01:46):
    “This case is so delicious because it's easy to understand and because everyone has strong feelings about it on one side or the other… the facts… reflect… exactly what the legal issues are.”
• Background of the Case:
  • A Denver gay couple requested a custom wedding cake from baker Jack Phillips, who refused on religious grounds. The brief, sincere encounter raised questions about anti-discrimination, free speech, and religious conscience (02:26–03:49).

2. The Legal Journey Through Lower Courts

• Phillips lost at both the Colorado Civil Rights Commission and state courts, which found his refusal violated Colorado’s anti-discrimination law, which includes sexual orientation (04:17).
• Phillips' defense centered primarily on First Amendment free speech rather than freedom of religion—an evolving legal strategy (04:17–06:04).

3. Good Faith All Around

• The sincerity of both sides—baker and couple—stands out, contrasting with staged “test case” litigation seen elsewhere (05:02).
  • Quote (Adam Liptak, 05:38): “Both sides thought they were doing the right thing.”

4. First Amendment Fault Lines: Speech, Religion, and Commerce

• The case is argued almost entirely on speech grounds, not religion. Conservatives have increasingly weaponized free speech arguments—originally used for issues like commercial speech and campaign finance—now for religious dissent (06:26).
• Unusual Amicus Alliance: Leading First Amendment thinkers are split:
  • Some argue cake-baking is not expressive conduct and thus not protected (Eugene Volokh, Cato Institute stance on photographers vs. bakers).
  • Others see any compelled artistic expression as a First Amendment problem (06:26–09:53).
  • Quote (Dahlia Lithwick, 08:26): “How are we going to divide between whether a cake baker is a cake artist ... or a photographer is just doing some ... what about the banquet hall, what about the waiters?”

5. Citizens United Parallel—When Free Speech Swallows Doctrine

• Dahlia suggests the conservative project—using First Amendment free speech to topple regulation—may be overreaching, engulfing other legal doctrines (09:53).
  • Adam Liptak agrees:
    Quote (10:39):
    “The conservative project to use the First Amendment to deregulate all kinds of aspects of American law has been hugely successful. And it may be that some people ... are having second thoughts.”

6. All Eyes on Justice Kennedy

• Kennedy’s dual legacy: champion of gay rights and staunch First Amendment defender. His Obergefell opinion (legalizing same-sex marriage) acknowledged space for debate and religious dissent (10:57).
  • Quote (Adam Liptak, 11:39):
    “Justice Kennedy sometimes likes to think losers get to complain … it’s at least possible that Justice Kennedy is going to give people, in limited ways, a chance to dissent from [same-sex marriage].”

7. The Solicitor General’s (SG) Curious Brief and Broader DOJ Trends

• The SG supported the baker, but distinguished this from race-based discrimination, suggesting different results for refusals based on interracial vs. same-sex marriages (13:11).
• The Trump DOJ frequently reverses or abandons prior federal positions—even in pending cases, which is extremely rare and professionally jarring (15:27).
  • Quote (Adam Liptak, 15:27): “The Solicitor General's Office is special… It prides itself on continuity and candor... And yet in the Trump administration… it switched sides … I don't have recent examples of that.”

8. Unprecedented DOJ Moves: Jane Doe & SG’s Office Conduct

• The SG’s office took extraordinary, punitive action against ACLU lawyers in the D.C. “Jane Doe” immigrant abortion case (18:19–22:23).
  • Adam posits the brief’s motivation came from political higher-ups, circumventing career lawyers’ norms.

9. Supreme Court Culture Under Trump

• Despite the chaos in other branches, the Supreme Court strives to maintain gravitas, collegiality, and adult conduct (23:34).
  • Quote (Adam Liptak, 23:34):
    “The Supreme Court … remains… a serious institution made up of grownups who have strong differences but try to address them through reasoned argument… is worthy of respect.”
• Justice Neil Gorsuch’s entry brings a more assertive, perhaps brash tone but the institution is unchanged at its core (25:11).
  • Quote (Adam Liptak, 25:11):
    “A kind of assertiveness on the part of a very new justice who sometimes doesn't hesitate to lecture his colleagues.”

10. Supreme Court’s Self-Awareness in Turbulent Times

• The justices are acutely aware of the Court’s unique role and the importance of maintaining legitimacy amid Trump’s attacks on the judiciary (27:04–28:41).
  • Example: the Court’s careful handling of the travel ban case to avoid inflaming national divisions.
• Trump’s attempts to “weaponize” the courts—through public taunts, manipulation, and open pressure on justices to retire—are recognized as threats to judicial independence, but justices’ ability to respond is limited (28:41).

11. Justice Kennedy's Retirement Calculus

• Adam discusses conflicting pressures on Kennedy: Republican loyalty vs. distaste for Trump’s style, potential influence by suggested replacements (like Kavanaugh), and the institution’s need for stability (30:25).

Notable Quotes & Memorable Moments

• On the Case’s Simplicity and Resonance
  • Adam Liptak (01:46):
    “This case is so delicious because it's easy to understand and because everyone has strong feelings about it on one side or the other…”
• On Both Sides’ Good Faith
  • Adam Liptak (05:38):
    “Both sides thought they were doing the right thing.”
• On the Expanding Reach of the First Amendment
  • Dahlia Lithwick (09:53):
    “Speech in America is swallowing everything. Or am I overstating things as I am apt to do?”
  • Adam Liptak (10:39):
    “The conservative project to use the First Amendment to deregulate all kinds of aspects of American law has been hugely successful...”
• On Justice Kennedy and the Future of the Court
  • Adam Liptak (11:39):
    “Justice Kennedy sometimes likes to think losers get to complain… having lost the huge fight over same sex marriage, it's at least possible that Justice Kennedy is going to give people, in limited ways, a chance to dissent…”
  • Dahlia Lithwick (29:45):
    “I guess I'm talking about Anthony Kennedy. Let's just call it what it is.”
• On Supreme Court Culture Amidst Political Chaos
  • Adam Liptak (23:34):
    “The Supreme Court … remains… a serious institution made up of grownups… worthy of respect…”
  • Adam Liptak (25:11):
    “A kind of assertiveness on the part of a very new justice who sometimes doesn't hesitate to lecture his colleagues.”

Timestamps for Important Segments

• 01:11 – 03:49: Case facts and why it resonates
• 04:17 – 06:04: The case's legal journey and the sincere stakes for both sides
• 06:04 – 09:53: The First Amendment argument & divided legal camps
• 09:53 – 10:57: Free speech doctrine's expansion—parallels to Citizens United
• 10:57 – 12:54: Justice Kennedy's pivotal role and possible leanings
• 13:11 – 15:27: The Solicitor General’s brief and the politicization of the DOJ
• 15:27 – 17:34: How the Supreme Court’s culture absorbs DOJ chaos
• 18:19 – 22:23: The “Jane Doe” abortion case and extraordinary SG office tactics
• 23:34 – 25:11: Supreme Court culture: Gorsuch’s arrival, rumors, and reality
• 27:04 – 28:41: The Court’s self-awareness in projecting normalcy
• 28:41 – 30:25: Trump’s attacks on the judiciary and the Court’s limited options
• 30:25 – 31:18: Kennedy's potential retirement and political calculations

Podcast Tone & Language

The conversation is informed, collegial, and occasionally laced with sly humor—especially when Dahlia prods Adam about behind-the-scenes Court gossip, or ponders the “deliciousness” of the case. Both speakers are precise, using clear language to bring legal nuance to a non-lawyer audience without dumbing down the substance.

Summary Takeaway

This episode distills why Masterpiece Cakeshop enthralls both legal insiders and the public: it’s a crucible for national values around dignity, free expression, and equality, all riding on a case whose facts are as compelling as its doctrine is complex. The episode is also a snapshot of a Supreme Court striving to stay above the nation’s political tumult, even as character and leadership shifts ripple through its justices and the DOJ alike. Ultimately, listeners gain a nuanced, engaging understanding of both the stakes of this “cake case” and the Court’s resilience—and vulnerabilities—during a turbulent era.