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 9th Circuit’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.
The history here is a bit tortured, but it is important to recount because it shows how unusual Kozinski’s actions were in reaching out to offer his opinion on the constitutionality of the second travel executive order.
In January, Trump introduced the first executive order banning travel from seven predominantly Muslim countries. Washington state, Minnesota, and others brought challenges, arguing that the ban violated the due process rights of certain people who wished to enter the country and that it violated the First Amendment’s Establishment Clause, as it was based on anti-Muslim bias. Trump lost to Washington state in a federal district court, which issued an order putting the first executive order on hold. A three-judge panel in the 9th Circuit refused to stay the trial court’s order. The appeals court agreed unanimously that Trump was likely to lose on the due process argument, and it declined to decide the Establishment Clause claim.
The entire 9th Circuit was in the process of considering whether or not to hear the case when the Trump administration withdrew its appeal in conjunction with withdrawing the first executive order and issuing the second one. A 9th Circuit judge had requested that the entire circuit nonetheless vote on whether to vacate the three-judge panel’s earlier decision finding a due process violation. Vacating the opinion would erase it as precedent for other courts to rely on. On Wednesday, the entire 9th Circuit voted not to vacate the earlier decision; Judge Jay Bybee and four other conservative judges (including Kozinski) dissented. Bybee’s main point was that the trial court likely got the due process claim wrong. That order said that more opinions from 9th Circuit judges might follow.
Also on Wednesday, a federal district court in Hawaii issued an order holding that the second travel ban could not be enforced because it violated the Establishment Clause. The trial judge recognized that in figuring out whether the government had engaged in religious animus, it could not engage in “psychoanalysis” of government officials. But the court said the “government need not fear” the difficultly of uncovering motive, because Trump had made plenty of anti-Muslim statements on the campaign trail and elsewhere. The court wrote: “For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’ ” A federal court in Maryland soon issued a similar order citing similar statements.
Two days after all this activity, as everyone focused on new cases out of Hawaii and Maryland, Judge Kozinski added a new dissent to the earlier 9th Circuit order, addressed primarily to the Establishment Clause issue—the issue that the first 9th Circuit opinion had declined to address. This was highly unusual, and two other judges wrote that it was inappropriate for Kozinski to do so because the matter was not before the court. In response, Kozinski wrote that his colleagues’ “effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis.” He said the Hawaii court relied on the first 9th Circuit order, and that made it fair game for him to weigh in.
In a kind of prebuttal to any eventual appeal of the Hawaii decision, Kozinski argued it was inappropriate for courts deciding Establishment Clause claims to look at the campaign statements of those who would become elected officials and enforce the laws. He claimed reliance on such statements to prove discrimination was “folly” because they are unreliable: “Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected.”
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.