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Supreme Court Justices Contain Multitudes

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One obvious subtext in the opinions in Masterpiece Cakeshop was the question of the relevance of Donald Trump’s repeated racist statements about his proposed travel ban to its constitutionality: Thomas and Gorsuch disclaimed the statements of commissioners as reasons to hold the application of civil rights law unconstitutional, while Breyer and Kagan’s concurrence appears in part an attempt to cue up a “gotcha!” if (when?) the entry ban is upheld.

As Leah Litman explains in detail, in multiple respects Kennedy’s opinion is inconsistent with a finding that Trump’s entry ban is constitutional. Her bottom line:

Instead, I will just say this:  Masterpiece Cakeshop reiterated a point basic to our constitutional system—the government cannot act on the basis of animus or hostility toward a particular religion.  To effectuate that principles, courts look to circumstantial evidence, including officials’ words, to determine whether the government acted with animus.  While there are ways to distinguish Masterpiece from the entry ban litigation (including some snippets in the opinion itself), those principles do a lot to resolve the merits of the First Amendment challenge in the entry ban.  Time will tell whether the Court will stick to them.

As hear final sentence implies, what logic dictates and what the Court will actually do are different questions. (Remember: Kennedy joined Raich.)  Michael Dorf makes explicit what Litman left implicit:

BUT assuming that the Court means what it says in Masterpiece, that should doom the Trump administration in the pending Travel Ban case. There the evidence of anti-religious bias is much stronger than in Masterpiece. Candidate and then President Trump repeatedly called for a Muslim ban and his spokespeople described the policy that became Travel Ban 1 as an attempt to dress it up to make it look legal. That Travel Ban 1 was, in turn, a but-for cause of Travel Ban 3, now before the Court. Meanwhile, despite being given multiple opportunities and invitations to do so, President Trump has never disavowed the anti-Muslim animus that underwrites the Travel Ban.

Do I expect the Court to invalidate the Travel Ban? Not necessarily. Wearing my legal realist hat, it becomes clear that Masterpiece was an act of prudence by the majority–everyone but Thomas on the right and Ginsburg and Sotomayor on the left–to avoid a difficult and divisive decision about how to reconcile the First Amendment with public accommodations laws. By contrast, in The Travel Ban case, prudence could lead the justices in a different direction. Concerned about politesse, they may fear to base their opinion on the fact that the president of the United States is a bigot–even though the evidence for that proposition is very much stronger than the evidence of bigotry on the part of one or two Colorado Civil Rights Commissioners.

Adrian Vermeule gives the TL;DR version:

If a majority wants to uphold the entry ban — and we don’t know, but that’s how to bet — the inconsistency with Masterpiece Cakeshop won’t give them any pause. The dissent will point out the inconsistency, and the majority will either find some way of distinguishing the cases or just ignore it. Scalia’s lenghty demonstration of the times O’Connor departed from the principle she claimed to be applying in his Webster concurrence is famous for its mean-spiritedness, but it was also unanswerable; ditto his arguments about how differently Kennedy treated stare decisis in Casey in his Lawrence dissent. They didn’t care. No judge is ever perfectly consistent, and noting an inconsistency is unlikely to stop a judge from doing something they really want to do and thinks the law permits.

…as noted in comments, Kennedy has preemptively distinguished the cases:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

This doesn’t necessarily mean that Kennedy has voted to uphold the entry ban, but it certainly does mean that this opinion won’t stop him if he wants to.

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