Lots will be written about the decision today in Masterpiece Cakeshop. Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices’ voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).
The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration.
Here is another in the burgeoning “What’s Wrong With Democracy?” canon, co-authored by the distinguished political scientists Frances McCall Rosenbluth and Ian Shapiro: Responsible Parties: Saving Democracy From Itself (Yale UP). Interestingly, in an age of renewed calls for federalism, decentralization, and local political decisionmaking ostensibly to resist the populist and nationalist tides, the authors argue for precisely the opposite: centralization of political power in major political parties and decreased popular control.
In recent decades, democracies across the world have adopted measures to increase popular involvement in political decisions. Parties have turned to primaries and local caucuses to select candidates; ballot initiatives and referenda allow citizens to enact laws directly; many places now use proportional representation, encouraging smaller, more specific parties rather than two dominant ones. Yet voters keep getting angrier. There is a steady erosion of trust in politicians, parties, and democratic institutions, culminating most recently in major populist victories in the United States, the United Kingdom, and elsewhere.
Frances Rosenbluth and Ian Shapiro argue that devolving power to the grass roots is part of the problem. Efforts to decentralize political decision-making have made governments and especially political parties less effective and less able to address constituents’ long-term interests. They argue that to restore confidence in governance, we must restructure our political systems to restore power to the core institution of representative democracy: the political party.