Many of the judicial decisions about President Trump’s travel bans have turned on his campaign statements about Islam and Muslims. Judge Roger Gregory’s majority opinion in last week’s Fourth Circuit decision argued that Trump’s statements showed that his executive order had an impermissible anti-Muslim motive. Thus the order was unconstitutional even though the exact same order, down to the last comma, would have been constitutional if issued by a president without that history. Judge Niemeyer’s dissent argued powerfully against this mode of judicial reasoning.
In a New York Times op-ed, Kate Shaw, a professor at the Cardozo School of Law, quotes Niemeyer’s warning that under this reasoning a court would “have free rein to select whichever expression of a candidate’s developing ideas best supports its desired conclusion.” But then she concludes that Judge Gregory was right without ever answering this or any other point from Judge Niemeyer.
Her major argument for Gregory over Niemeyer is that courts have reasoned this way before. She cites a 1993 religious-freedom case in which the majority opinion held statements by members of the city council against a law it had passed. Only two justices endorsed that part of the opinion, though. More important, Justice Scalia, joined by Chief Justice Rehnquist, made a good argument against that part of the opinion: It can be difficult to impossible to identify a singular motive for a policy, and whether an action is within the constitutional power of a government is orthogonal to whether the motives behind it were pure. Maybe Scalia was and Niemeyer is wrong about these questions, but after this op-ed they remain unrebutted.