I have written this piece for Slate. It begins:
Late Friday afternoon, when few were paying attention, one of the smartest judges on the 9th U.S. Circuit Court of Appeals went out of his way to throw Donald Trump a lifeline. In a surprising and late dissent to the 9thCircuit’s ruling on Trump’s first travel ban, Alex Kozinski argued that it would violate the First Amendment to take Trump’s campaign statements evincing anti-Muslim animus seriously (or literally). That claim may help save the administration’s new executive order banning travel from six predominantly Muslim countries. It’s an argument that just might attract the court’s conservatives, including the soon-to-be-confirmed Neil Gorsuch, and lead them to reject constitutional challenges to the new executive order. And that would be a shame, not just for this case, but for all cases raising claims of government bias.
It concludes:
Kozinski went still further, suggesting such reliance to prove discriminatory motive runs afoul of the First Amendment rights of candidates to engage in political speech. Quoting from the 2014 Supreme Court opinion by Chief Justice John Roberts in McCutcheon v. FEC that struck down some federal campaign contribution limits, Kozinski said the reliance on campaign statements will “chill campaign speech, despite the fact that our most basic free speech principles have their ‘fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” He imagined “eager research assistants” mining the archives of campaign statements, engaged in a kind of “evidentiary snark hunt.”
This is just the kind of argument that the Supreme Court’s conservatives like. Kozinski, who clerked for Justice Anthony Kennedy many decades ago, knows this argument could resonate with the jurist who wrote the controversial 2010 opinion in Citizens United v. FEC that freed corporate money in candidate elections and extolled the value of free speech. If a case raising these issues gets to the Supreme Court after Judge Neil Gorsuch is confirmed, it will likely resonate with him, too. There’s every reason to believe he will be in the same First Amendment camp as Kennedy and the other conservatives.
But Kozinski’s argument is a bad one on the merits, and it is likely to have negative consequences. Imagine a candidate for local prosecutor who promises to keep black people off juries. Should we not be allowed to consider such statements as proof of racial bias in jury selection out of fear of “chilling” campaign speech?
It’s difficult to win cases requiring proof of discriminatory intent precisely because politicians are usually circumspect when they have discriminatory views. Trump is the rare candidate who speaks his mind, and he told us why he wanted to keep Muslims out of the U.S.
Candidates tend to keep their promises. If voters can rely on discriminatory statements in deciding who to vote for, so should those who later challenge the discrimination that flows after the season of campaign promises. Candidates who make these statements are not “poor shlubs.” They are being held to account for what they say.