I’m going to give Justice Jackson the benefit of the doubt. Anyone, even a distinguished judge, can have a bad day and say something that just doesn’t come out right. Still, it must be said, her contribution to the many analogies and hypotheticals being tossed around in the Supreme Court during the oral argument of 303 Creative LLC v. Elenis, the case where a web designer claims that forcing her to create a wedding website for a same-sex couple violates her First Amendment Rights, was jaw-droppingly bad. Frightening, even.
Justice Neil Gorsuch had correctly noted that the objection at issue was not based on the status of the same-sex couple, but instead, the message that the business owner did not want to send. The question isn’t the “who” Gorsuch said, but the “what.” Exactly. And that’s why CNN’s headline on the case, “Supreme Court conservatives seem to side with website designer who doesn’t want to work with same-sex couples” is false and misleading. Lorie Smith has been very clear that she will work for anyone; she just won’t make same-sex wedding websites. It’s not “Who,” but “What.”
Now consider Justice Ketanji Brown Jackson’s rejoinder. Pay attention, please:
“I want to do video depictions of ‘It’s a Wonderful Life,’ and knowing that movie very well, I want to be authentic, and so only white children and families can be customers for that particular product. Everybody else can, I’ll give to everybody else I’ll sell them anything they want, just not the ‘It’s a Wonderful Life’ depictions. I‘m expressing something, right? For the purposes of that speech. I can say anti-discrimination laws can’t make me sell ‘It’s a Wonderful Life’ packages to non-white individuals.This business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940’s and 1950’s Santa scenes, they do it in sepia tone and they are customizing each one.”
This is gibberish. What’s a “video depiction” of that movie? What does authenticity have to do with who you sell the movie to? The movie wouldn’t change if it was only sold to Mongolian dwarfs. And no, who you sell a video to isn’t a message, and being forced to sell it to everyone isn’t compelled speech.
As for the sepia Santa hypothetical, I have no idea in Hell what Jackson is trying to say. Any theories?
Maybe she was desperately trying to argue for a position she knows she can’t support. Maybe she just got confused mid-argument: it happens. Maybe she was having a mini-stroke, or has early Christmas fever. I don’t know. But I sure hope today’s performance isn’t a true sample of what we can look forward to for the next thirty years or more.
Because that would be terrifying.