Few would have guessed that the First Amendment and its application to campaigns would somehow become an issue in the judicial review of President Trump’s beleaguered travel ban. And yet that is what happened, as Judge Kozinski has put this question into play in a dissent from the Ninth Circuit’s denial of en banc rehearing.

Judge Kozinski argues that the courts are opening up a potentially disastrous conflict with the First Amendment, by allowing for judicial inquiry into discriminatory purpose in an officeholder’s (and associates’) comments on the campaign trail. In the defense of the travel ban, the Administration has insisted on its facial neutrality, arguing that religious animus played no role. But a District Court in Hawaii found that repeated references to a Muslim ban during the campaign belied this suggestion of a secular purpose and doomed the order on an Establishment Clause analysis.

Rick Hasen has published a piece in this issue in Slate, arguing that this dissent is “bad on the merits,” and would immunize obviously discriminatory purpose revealed in flat-out appeals to racial bias on the campaign trail.   He gives the example of a candidate for county prosecutor who declares that African-Americans should be kept off juries. Would we believe that, as a matter of formal doctrine, courts should ignore this? Kozinski imagines that they should, Hasen argues that they shouldn’t. Perhaps the answer is that they just wouldn’t.

In his article Institutional Formalism and Realism in Constitutional and Public Law, Rick Pildes has called attention to the fact that courts may “adapt legal doctrine to take account of how… institutions actually function in, and over, time.” The realist view takes account of “more contingent, specific features of institutional behavior,” among them “the particular persons who happen to occupy the relevant offices” and “the ways in which the institution actually functions… within distinct political, historical, and cultural contexts.” In sum, a court may decide that Kozinski’s First Amendment concerns carry due weight most of the time but not always– and not in the particular case. It would choose to leave to another day doctrinal implications and difficulties of application.

On this realist perspective, if a candidate’s campaign statements and commitments are exceptional and persistent in substance, rhetoric and tone, raising a grave doubt about a discriminatory governing program, the government subsequently formed to implement that program will be put to the test. A showing of facial neutrality sufficient in “normal” circumstances will not make the grade. Judge Kozinski asks how an administration can ever escape this penalty box. It is a fair question, the only answer to which is that the Executive will have to try very hard.

Judge Kozinski presses his point with examples meant to show the First Amendment perils of judicial inquiry into purpose based on comments made prior to assuming office: “What is the appropriate place of an overzealous senior thesis or a poorly selected yearbook quote?” But that, of course, was not this case, in which the court drew on statements in the immediate past that were central to the President’s campaign and a priority in his promised governing program.

So while Judge Kozinski’s points are all well taken, his colleagues don’t seem troubled, and the District Judge in Hawaii has evidently concluded that it would be best to put aside for the time being more formal doctrinal concerns and instead to be, in a word, realistic.


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