The "Travel Ban case," whose formal name is Trump v. Hawaii, 585 U.S. ___ (2018), is a disaster in all relevant respects: practically, intellectually, jurisprudentially. Even limiting the scope of examination to the law, Hawaii's failures are multiple. For one, even as the case purports to disavow Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court case that approved the internment of Japanese Americans, Hawaii employs the exact same logic as Korematsu. As Professor Joseph Fishkin explained:
I want to focus on a different type of jurisprudential failure about which I have not seen much discussion: the failure of "animus" jurisprudence that is so strongly associated with Justice Anthony Kennedy. Just as much as Hawaii contradicts the Supreme Court's ostensible disavowal of Korematsu, Hawaii also contradicts Romer v. Evans, 517 U.S. 620 (1996), the high point of Justice Kennedy's animus jurisprudence.
Those who argue in favor of Hawaii usually note two points: (1) the president's plenary power over immigration, which is an expression of sovereignty, and; (2) the travel ban is justified under the rational basis analysis. But Romer contradicts both of these points. In Romer, the majority led by Justice Kennedy held that a state constitutional amendment for Colorado that deprived protected status for gays was found unconstitutional, because animus, or "bare . . . desire to harm an unpopular political group," 517 U.S. at 634, cannot serve as a rational basis for any law. As long as there is impermissible animus, the travel ban should have been unconstitutional. Romer says presence of animus results in the failure in the rational basis test--enough to defeat the clearest expression of sovereignty in the democratic system, namely a constitutional amendment for which the people directly voted to adopt.
How much animus is enough to invalidate a law? According to Justice Kennedy in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), only a little bit! In Masterpiece Cakeshop, this statement by one of the commissioners in the Colorado Civil Rights Commission was found to be sufficient to display impermissible animus:
As it turned out, I overestimated Justice Kennedy's intellectual consistency. The majority opinion attempted to deflect the animus jurisprudence by recounting the travel ban's supposed national security justifications (in Part IV-D.) If Romer means anything, if Masterpiece Cakeshop means anything, this attempt is a failure. Trump's animus toward Muslims is clear as day; equally clear is the speciousness of the national security justification behind the travel ban. The dissent by Justice Sonia Sotomayor flags this very point, citing Romer: "But even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is “‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’” that the policy is “‘inexplicable by anything but animus.’” Ante [majority opinion], at 33 (quoting Romer v. Evans, 517 U. S. 620, 632, 635 (1996))." Justice Stephen Breyer's dissent also clinically exposes the pretextual nature of the national security justification by focusing on how the waiver process, which is supposed to be a safety valve against religious animus, is in fact a sham.
I think Kennedy himself realizes this, because his concurrence opens with a citation to Romer: "There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is 'inexplicable by anything but animus,' Romer v. Evans , 517 U.S. 620, 632 (1996), which in this case would be animosity to a religion." But Kennedy then simply rolls over, citing "in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs". Sure, the Executive accords deference from the Judiciary--but does Kennedy really mean to say the Executive deserves greater deference than a constitutional amendment voted directly by the people, as was the case in Romer?
The unkindest assessment for Justice Kennedy has been that he was a preening moralist and awful judge; that he would grandstand over lofty concepts like "liberty" and "dignity" and thunders against "animus," but has no interest in turning those concepts into a rigorous legal standard to be applied consistently. This assessment is bipartisan: Ilya Shapiro of the Cato Institution said Kennedy has "harmed the rule of law"; Professors Kent Greenfield and Adam Winkler said "[Kennedy's] opinions often hedged, refusing to establish strong rules to protect gays and lesbians going forward. He spent more time in his key opinions discussing the ephemeral than the doctrinal." I was a legal academic shortly after the Supreme Court decided Obergefell v. Hodges, 576 U.S. ____ (2015), and I knew no legal scholar, not even the most liberal LGBT ones, who liked the way Kennedy arrived at the conclusion. And of course, the conservative reaction to Obergefell can be summed up in Justice Antonin Scalia's footnote in his dissenting opinion: "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
By signing onto Hawaii and immediately retiring, Justice Kennedy solidified that assessment. Even apart from my desired outcome in the travel ban case, I had always thought the animus jurisprudence was a very positive thing, a major contribution that Justice Kennedy has made in the U.S. Constitutional jurisprudence. I also found Kennedy's aspirational writing style annoying, but thought the style served a function of inspiring the public about the Constitution's grand aims. With more time and refinement, I thought, the animus jurisprudence could prove to be a valuable tool in a world in which the government force is often deployed against disfavored groups with a translucent veneer of pretext. With Kennedy's retirement, that possibility is no more. Hawaii made a mockery of the animus jurisprudence, which is now reduced to an arbitrary doctrine that protects a Christian baker but not Muslim travelers.
As can be seen in Romer, the animus jurisprudence did much to advance the LGBT rights, but it rarely reached beyond that one particular topic that defined much of U.S. politics for the past generation. By retiring, Kennedy ensured there will be no further development of the animus jurisprudence, because his successor (no matter how it may be) is certain to disavow it. Kennedy's vote in Hawaii will serve as a clear reminder that the animus jurisprudence has all the persuasive force of the jurisprudence behind Bush v. Gore, 531 U.S. 98 (2000), a cynical, result-driven legal reasoning to which no one will revisit after the desired result was achieved.
The problem with Korematsu was not that it slipped and failed to cloak its racism in the garb of a nominally facially neutral order, focused on nations rather than ethnicity. The problem was the underlying xenophobia of the policy itself, and of the proposition that everyone from Japan, and their children, presented a military threat to the United States. Framing the policy in facially neutral terms would not have changed this; nor, similarly, would the Japanese internment policy be less worthy of repudiation today if the government had belatedly added Germany and Italy to the list of nations from which people would be interned, in the same way that the Trump Administration belatedly added Venezuela and North Korea (and set up a “waiver” process that is apparently something of a sham) as a way of dressing up the policy as something other than what it is in a bid to survive judicial scrutiny.Why was Korematsu Wrong? [Balkinization] (emphasis mine)
I want to focus on a different type of jurisprudential failure about which I have not seen much discussion: the failure of "animus" jurisprudence that is so strongly associated with Justice Anthony Kennedy. Just as much as Hawaii contradicts the Supreme Court's ostensible disavowal of Korematsu, Hawaii also contradicts Romer v. Evans, 517 U.S. 620 (1996), the high point of Justice Kennedy's animus jurisprudence.
Those who argue in favor of Hawaii usually note two points: (1) the president's plenary power over immigration, which is an expression of sovereignty, and; (2) the travel ban is justified under the rational basis analysis. But Romer contradicts both of these points. In Romer, the majority led by Justice Kennedy held that a state constitutional amendment for Colorado that deprived protected status for gays was found unconstitutional, because animus, or "bare . . . desire to harm an unpopular political group," 517 U.S. at 634, cannot serve as a rational basis for any law. As long as there is impermissible animus, the travel ban should have been unconstitutional. Romer says presence of animus results in the failure in the rational basis test--enough to defeat the clearest expression of sovereignty in the democratic system, namely a constitutional amendment for which the people directly voted to adopt.
How much animus is enough to invalidate a law? According to Justice Kennedy in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), only a little bit! In Masterpiece Cakeshop, this statement by one of the commissioners in the Colorado Civil Rights Commission was found to be sufficient to display impermissible animus:
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. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.When I saw this result from Masterpiece Cakeshop, I was quite happy--because I thought there was no way for Justice Kennedy to not find impermissible animus in the travel ban case. If the statement above displays impermissible animus, how can the court possibly look away the very obvious animus that President Donald Trump displayed over and over again through his statements, before and after winning the presidency? Quick examples from Hawaii's majority opinion include: "Islam hates us"; United States was "having problems with Muslims coming into the country"; retweets of multiple anti-Muslim propaganda pieces. Surely, pushing anti-Muslim propaganda pieces while implementing the travel ban must be a display of animus, right?
As it turned out, I overestimated Justice Kennedy's intellectual consistency. The majority opinion attempted to deflect the animus jurisprudence by recounting the travel ban's supposed national security justifications (in Part IV-D.) If Romer means anything, if Masterpiece Cakeshop means anything, this attempt is a failure. Trump's animus toward Muslims is clear as day; equally clear is the speciousness of the national security justification behind the travel ban. The dissent by Justice Sonia Sotomayor flags this very point, citing Romer: "But even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is “‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’” that the policy is “‘inexplicable by anything but animus.’” Ante [majority opinion], at 33 (quoting Romer v. Evans, 517 U. S. 620, 632, 635 (1996))." Justice Stephen Breyer's dissent also clinically exposes the pretextual nature of the national security justification by focusing on how the waiver process, which is supposed to be a safety valve against religious animus, is in fact a sham.
I think Kennedy himself realizes this, because his concurrence opens with a citation to Romer: "There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is 'inexplicable by anything but animus,' Romer v. Evans , 517 U.S. 620, 632 (1996), which in this case would be animosity to a religion." But Kennedy then simply rolls over, citing "in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs". Sure, the Executive accords deference from the Judiciary--but does Kennedy really mean to say the Executive deserves greater deference than a constitutional amendment voted directly by the people, as was the case in Romer?
The unkindest assessment for Justice Kennedy has been that he was a preening moralist and awful judge; that he would grandstand over lofty concepts like "liberty" and "dignity" and thunders against "animus," but has no interest in turning those concepts into a rigorous legal standard to be applied consistently. This assessment is bipartisan: Ilya Shapiro of the Cato Institution said Kennedy has "harmed the rule of law"; Professors Kent Greenfield and Adam Winkler said "[Kennedy's] opinions often hedged, refusing to establish strong rules to protect gays and lesbians going forward. He spent more time in his key opinions discussing the ephemeral than the doctrinal." I was a legal academic shortly after the Supreme Court decided Obergefell v. Hodges, 576 U.S. ____ (2015), and I knew no legal scholar, not even the most liberal LGBT ones, who liked the way Kennedy arrived at the conclusion. And of course, the conservative reaction to Obergefell can be summed up in Justice Antonin Scalia's footnote in his dissenting opinion: "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
By signing onto Hawaii and immediately retiring, Justice Kennedy solidified that assessment. Even apart from my desired outcome in the travel ban case, I had always thought the animus jurisprudence was a very positive thing, a major contribution that Justice Kennedy has made in the U.S. Constitutional jurisprudence. I also found Kennedy's aspirational writing style annoying, but thought the style served a function of inspiring the public about the Constitution's grand aims. With more time and refinement, I thought, the animus jurisprudence could prove to be a valuable tool in a world in which the government force is often deployed against disfavored groups with a translucent veneer of pretext. With Kennedy's retirement, that possibility is no more. Hawaii made a mockery of the animus jurisprudence, which is now reduced to an arbitrary doctrine that protects a Christian baker but not Muslim travelers.
As can be seen in Romer, the animus jurisprudence did much to advance the LGBT rights, but it rarely reached beyond that one particular topic that defined much of U.S. politics for the past generation. By retiring, Kennedy ensured there will be no further development of the animus jurisprudence, because his successor (no matter how it may be) is certain to disavow it. Kennedy's vote in Hawaii will serve as a clear reminder that the animus jurisprudence has all the persuasive force of the jurisprudence behind Bush v. Gore, 531 U.S. 98 (2000), a cynical, result-driven legal reasoning to which no one will revisit after the desired result was achieved.
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