On June 6, 2018, I attended a CLE seminar sponsored by the Philadelphia Association of Defense Counsel. The program featured Robert Zauzner, Chief of Appeals, for the United States Attorney’s Office for the Eastern District of Pennsylvania. Zauzner is a busy lawyer because he edits all (and argues some) of the criminal and civil appeals coming from that office.
His topic focused on appellate strategy. Zauzner shared the importance of framing the right issues; keeping the brief short and persuasive as possible. But one insight Zauzner offered was this: You never really know what facts an appellate court will seize upon to drive its decision.
By now, most readers of this blog know that writing for the majority (7/2), Justice Anthony Kennedy gave the Court’s judgment on First Amendment grounds to baker Jack Phillips in the Masterpiece Cake Shop case. But the high court got to its result, which will have limited value as precedent, in a strange way – – a way that illustrates the wisdom of Zauzner’s advice on the facts.
The court based its decision, not on broad principles of the First and Fourteenth Amendment (or indeed whether a cake could be considered a work of art) but on the manner in which the Colorado Civil Rights Commission (CADA) dealt with Jack Phillips at the several hearings in which they considered the reasons Phillips gave for refusing to bake a cake for a same sex couple. In essence, the court found that CADA failed to give due deference to what the Court characterized as Phillips’s deeply held religious beliefs. The facts driving this outcome were literally baked deep into the record and were not really a focus in the briefs or during the cut and thrust at oral argument.
This narrow ruling proves Zauzner’s point about the care that ought to be given to telling the story behind any appellate controversy.
My feelings and that of many SCOTUS commentators is the Court focused on CADA’s conduct precisely because it wanted to avoid any broad pronouncements premised on a cake made of flour, yeast and sugar. And so, Phillips won because the story, as told, revealed the animus of CADA towards Phillips’s claim of a strongly held religious belief.
And that’s it for this This and That. If you have any comments or cake recipes that you would like to share, please call or email Dennis Wade.