We’re going to start this post with a short game of “Who Said That?” Your options are: a racist juror from a criminal case, or the President of the United States.

[1] “Mexican men ha[ve] a bravado that caused them to believe they could do whatever they wanted with women...Mexican men are physically controlling of women
because of their sense of entitlement.”

[2] “When Mexico sends its people, they’re not sending their best… They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.”

Stumped? Keep reading to find out…

Before the end of the month the Supreme Court will announce its decision about the lawfulness of the President’s entry ban.  But many of the Court’s recent decisions tell us what we need to know: Under any meaningful standard for assessing government motives, the entry ban must fail.

The current version of the entry ban suspends entry into the United States from several countries (and different classes of persons from those countries).  Marty Lederman explained the contours of the ban here; briefly, the ban suspends entry from most nationals of several Muslim majority countries, as well from a few other more narrow groups.  Those countries were also subject to the first iteration of the President’s entry ban--the version that Stephen Miller probably fired off on a cocktail napkin, which also contained an explicit religious preference.

The current entry ban’s challengers argue that it violates the First Amendment because it discriminates on the basis of religion.  Although the current version of the ban does not explicitly mention religion, the challengers argue it was motivated, at least in part, by the goal of excluding Muslims from the United States.

Some of the administration’s defenders argue that the challengers do not have the kind of evidence sufficient to establish the ban was motivated, even in part, by religious animosity.  In a prior post and short article, Leah compared the evidence of religious animosity in the entry ban case to the evidence of religious animosity in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which the Court found sufficient to establish the Colorado Civil Rights Commission’s religious hostility.

This post draws a different comparison--it uses three of the Court’s recent cases on racial discrimination in the criminal justice system to highlight what kinds of evidence can establish that ostensibly neutral, or legitimate-seeming government actions were actually driven by racial animosity.  Here too, the parallels between the entry ban and those cases are illuminating, if only to underscore that when a government official announces that he or she is going to discriminate on the basis of race (or religion), courts will presume that the official did just that.

Pena-Rodriguez v. Colorado (2017).  Pena-Rodriguez held that defendants could use evidence outside the trial record to argue that a juror’s racial animus deprived the defendant of a fair trial in violation of the Sixth Amendment.  The evidence of racial animus in Pena Rodriguez was the following (alleged) statements from one juror:

• “Mexican men ha[ve] a bravado that caused them to believe they could do whatever they wanted with women” (page 862).
• “‘I think he did it because he’s Mexican and Mexican men take whatever they want” (page 862).
• “Nine times out of ten Mexican men were guilty of being aggressive toward women and young girls” (page 862).
• An alibi witness was not credible because he was an “illegal”  (The witness was apparently a lawful permanent resident.) (page 862).

Stepping away from the entry ban for a second, it is useful to compare those statements with statements the President has made about Mexicans (or people he labels as Mexican):

• “When Mexico sends its people, they’re not sending their best… They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.” (Washington Post).
• “I’ve been treated very unfairly by this judge. Now, this judge is of Mexican heritage. I’m building a wall, OK? I’m building a wall. I think I’m going to do very well with Hispanics. But we’re building a wall. He’s a Mexican. We’re building a wall between here and Mexico.” (CNN).
• And as the Washington Post reported, in an Oval Office meeting last year, President Trump allegedly recited made-up Hispanic names and described potential crimes they could have committed, such as rape or murder.

Just to make this point explicit: The President has made the kinds of statements about Mexicans that the Court has views as indicating racial animus.  In fact, he does so on a not infrequent basis.

Now back to  the entry ban, the President has similarly made sweeping negative generalizations about Muslims.  He has said:

• The United States has a “Muslim problem.” 
• He has said “I think Islam hates us” and that Muslims have “tremendous” and “unbelievable” hatred.
• He has claimed that many American Muslims were cheering after September 11.
• He has used “terrorists” to refer to Muslims attacked by General Pershing.

These generalizations, which equate Muslims with terrorists, and represent that all Muslims have hatred toward the United States are similar to the kinds of race-based generalizations the Court identified as evidence of animus in Pena-Rodriguez. Pena-Rodriguez also underscores that racist statements need not be formally “on the record” in order for the Court to consider it part of an unconstitutional final action.

The President’s generalizations about Muslims are also similar to the evidence of racial animus in Buck v. Davis (2017),  when the Court set aside Duane Buck’s capital sentence because of evidence that racial discrimination infected his sentencing.  The evidence of racial discrimination included an expert report on seven statistical factors indicating future dangerousness, one of which read “Race. Black: Increased probability” (page 4).  The report’s expert testified that race is a factor “know[n] to predict future dangerousness” (Id.).

Finally, Foster v. Chatman (2016), concluded that the defendant had “clearly” established that prosecutors intentionally removed prospective jurors because of their race.  The defendant challenged the prosecutor’s decision to strike four black jurors, and the prosecutor responded by offering “race-neutral” reasons to remove each of the jurors.  Despite the ostensibly legitimate reasons why each black juror was struck,the Court concluded the prosecutor had “clearly” removed at least two of the jurors because of their race. The Court’s conclusion rested on two interwoven considerations.  

One was that the reasons the prosecutor gave for striking the black jurors applied to other, white jurors whom the prosecutor did not strike.  In the entry ban case, this resembles the challengers’ claim that the government’s purportedly legitimate criteria for subjecting countries to the entry ban (namely, whether the countries have sufficient information sharing mechanisms) does not differentiate between the countries subject to the ban and those that are not.  Sophia Brill has written about this point at Lawfare, and Ilya Somin has offered a lengthy rebuttal to the government’s claim that it has extensively documented differences in information-sharing techniques among different countries.

Foster’s second consideration was that, no matter what purportedly legitimate rationale the government offered for removing the jurors, there was too much evidence that an illegitimate rationale--the desire to remove black jurors--contributed to the prosecutor’s decisions.  That evidence included:

• A venire list with the names of the black jurors highlighted in green.  The letter “B” also appeared next to their names (page 1744).
• A list of “definite NOs,” which included all six prospective black jurors (1744).
• A handwritten note: “If it comes down to having to pick one of the black jurors, [this one] might be okay” (1744).
• A document titled “Church of Christ” with a hand written note:  “NO. No Black Church”  (page 1742).
• The prosecution's “shifting explanations, misrepresentations of the record, and persistent focus on race” (page 1742).  

One can point to similar evidence about the entry ban.  That would include:

• The first entry ban, which was announced without vetting from any relevant agencies.
• The text of the first entry ban, which contained a facial preference for religion and warned of various ideologies.
• The text of the second ban, which contained similar dog whistles.
• The government’s conduct (divorcing the second ban from the investigation/inter-agency review process that purportedly justified it).
• All of the President’s statements, including his promise for a “total and complete shutdown” of Muslims entering the United States.
• Rudy Giuliani’s statement that the President asked him how to do a “Muslim ban” legally, and that the President was told to use nationality.

In Foster, the prosecutors claimed they did not make any of the annotations of black jurors the Court identified.  This was beside the point, however, because the Court surmised that even if the annonations came from investigators, there was enough animus swirling around to conclude that the  prosecutors more likely than not based their actions on such statements.

One can make a similar assessment about the entry ban:  Sure, there might be some conclusory “findings” out there, or some inter-agency review process initiated after the first and second entry bans.  But there’s an awful lot of anti-Muslim statements out there; so many that it’s hard to believe that thinking didn’t motivate the entry ban at all.  Particularly because, in this case, most of these statements originated from the person who ultimately signed the ban itself.

As these cases illustrate, the President’s statements about Muslims (and Mexicans) are the kinds of statements that the Court has said establish animus and discrimination.  These cases also underscore that the evidence of discrimination in the entry ban, is more than enough to establish that the government acted for illegitimate reasons in this particular case, despite its protestations to the contrary.  The question is whether the Court is going to pretend otherwise.

As the Court said in Foster: “[t]wo peremptory strikes on the basis of race are two more than the Constitution allows” (page 1755). Let’s hope they find three entry bans issued on the basis of race/religion to be three more than the Constitution allows.

@LeahLitman

@_abigaildehart

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