The American flag flies at half-staff in front of the U.S. Supreme Court building in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

Congrats, Supreme Court. Keep Thinking Small.

(Bloomberg Opinion) -- In 2006, Chief Justice John Roberts said that he favored deciding cases on “the narrowest possible grounds.” He argued that modest, narrow rulings would be more likely to command a consensus within the Supreme Court — and perhaps within the country as well.

Roberts was embracing an approach to legal reasoning known as “judicial minimalism.” Unlike those who promote big, ambitious rulings, minimalists like to avoid the most controversial issues.

Often disappointing both the left and the right, they display what Yale law professor Alexander Bickel called more than half a century ago “the passive virtues” of silence and restraint. When minimalists are required to resolve cases, they adopt cautious, incremental approaches that do not take sides on great controversies involving guns, abortion, affirmative action, gay rights and religious liberty.

In two of the most important cases this term, the Supreme Court chose unexpectedly minimalist routes. In one of those cases, involving a conflict between gay rights and religious liberty, minimalism deserves enthusiastic applause. In the other, involving partisan gerrymandering, well — maybe not.

QuicktakeGay Rights

In the gay-rights case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Jack Philipps, a baker, told a same-sex couple that he would not make a cake for their wedding. He claimed that he opposed same-sex marriage and was exercising his constitutional right to act in accordance with his religious conviction.

The Colorado Civil Rights Commission rejected his constitutional objection, ruling that he could not discriminate against same-sex couples.

If we put Philipps’ claim in its strongest form, the legal issues are technical and complex. Reasonable people disagree about how to resolve them. Almost everyone agrees that if a landlord has a religious objection to racial intermarriage, he cannot refuse to rent his property to a mixed-race couple. Is Philipps’ claim any different?

QuicktakeU.S. Supreme Court

The high court refused to answer that question. Writing for a 7-2 majority, Justice Anthony Kennedy spoke in minimalist terms.

As he saw it, the Colorado Civil Rights Commission’s members showed unacceptable hostility toward Philipps’ religious convictions. In his view, that hostility was displayed by a commissioner who said:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.

In the court’s view, the Constitution does not allow public officials to act on that basis.

That ruling left the fundamental issues unresolved. Kennedy left open the possibility that public officials could conclude that the guarantee of equal treatment barred discrimination against same-sex couples, even if it was motivated by religious convictions — as long as the officials weren’t hostile to religion in general.

Minimalism made a lot of sense in the Masterpiece Cakeshop case. Americans are divided about the relationship between religious liberty and gay rights. In the face of that division, federal judges should be humble. They should refrain from resolving the most controversial questions when they do not need to do so.

There is also a practical point, stressed by Roberts in 2006: If the court rules narrowly, its opinion might win broad agreement — not only among the justices, but perhaps within the country as well.

That’s a good argument for judicial decisions that allow the political system to have some space for resolving the most divisive social issues. But when democracy itself is at stake, the argument for judicial silence is weakened.

Gill v. Whitford, a case from Wisconsin, posed an issue that is central to the future of American democracy: Does the Constitution impose judicially enforceable limits on efforts by Democrats or Republicans to try to entrench their own power through the design of voting districts?

Writing the court’s unanimous opinion, Roberts refused to say. He concluded that the plaintiffs had not shown an “injury in fact,” required by the Constitution for the invocation of judicial power.

Roberts emphasized that individual voters might be able to establish the requisite injury if they could show that their votes were diluted because they lived in a gerrymandered district. Suppose, for example, Democratic voters live in a district that had been specifically designed to ensure a strong majority of Republican voters. The problem in the Wisconsin case is that the plaintiffs did not demonstrate that they lived in any such district.

Nonetheless, the court refused to terminate the proceedings. Instead, it sent the case back to the trial court to give the plaintiffs a chance to make the required demonstration.

That means that before long, partisan gerrymandering will come back to the Supreme Court. As of now, we don’t know whether the justices are prepared to strike down the most egregious instances.

Under longstanding law, the court was probably right to insist that Wisconsin’s voters must show concrete harm. But in the context of voting rights, the argument for minimalism is much less compelling.

It’s one thing to say that in democracy’s name, judges should proceed cautiously on the largest social issues. It’s quite another to suggest that judges should abstain when democratic self-government is itself on the line.

If one political party is entrenching itself, judicial silence is not exactly golden.

©2018 Bloomberg L.P.

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