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Wednesday, March 23, 2022

Alabama Law Review Symposium: "The End of Animus: The Lifespan of Impermissible Purposes"

A substantial number of cases in recent years, including Trump v. Hawaii, Masterpiece Cakeshop, Ramos v. Louisiana, and Espinoza v. Montana Department of Revenue, have raised a question that has received surprisingly little sustained scholarly or legal attention, at least since the initial flurry of scholarship concerning motives in constitutional law. A lot of scholarship on this general subject asks when animus or improper purpose begins: what sorts of actions, speech, or facts trigger a finding of illegitimate purpose? That focus is understandable. But the question that has received much less attention is when animus or improper purpose end. When, given the initial presence of an illegitimate purpose, do later actions mitigate or purge the initial presence of "discriminatory taint?" When should later actions be treated as merely cosmetic, so that it is not too easy for a discriminatory actor to sweep improper purposes under the rug? Conversely, given a broader interest in effective governance and in encouraging proper, reasoned decision-making by political actors--even where that decision-making might lead to a policy result one personally disfavors--could we set the bar for purging discriminatory taint too high?

As Joseph Blocher wrote some time back, "constitutional law does not currently provide a ready answer" to this question. And the answer to that question is relevant not only to the "end" of animus" but to finding its existence in the first place, as Blocher observes: "The questions are deeply inter-related....[J]udges’ willingness to recognize impermissible purpose depends in part on what they see as the costs of doing so. The harder it is for the government to clean its hands, the more reluctant some judges—or, looking into the near future, some Justices—will be to recognize when they are dirty." It's a question that runs across a variety of legal and constitutional areas, including antidiscrimination law, election law, immigration law, criminal procedure, and the First Amendment.  

This is the subject of this year's Alabama Law Review Symposium, "The End of Animus: The Lifespan of Impermissible Purposes," which will be held in person (with both in-person and remote guests) this Friday. The lineup of panelists will discuss the question as a general matter of law and legal theory, with particular reference to equal protection law, and with respect to current controversies in various fields. Bonnie DeCarlo, who has done a wonderful job as Special Works Editor for the Law Review, has lined up what I can call without exaggeration a stellar group of panelists: William Araiza (who will also deliver the keynote address), Dale Carpenter, Jennifer Chacon, Michael Coenen, Andrew Hayashi, Anil Kalhan, Joy Milligan, Louis Michael Seidman, Nicholas Stephanopoulos, and Robert Tsai.

I am tremendously interested to hear what they have to say. I have been thinking about this question for a fair amount of time now, and I am certainly not at a resting point, other than two general observations. First, I do think there is value in thinking about this question in terms of the crucial if oft-lamented question of governance. A reasonable approach here, one that does not too easily reject lawmakers' attempts to purge the taint of animus of illegitimate purpose, can do what constitutional law is supposed to do, at least in an Elysian sense but also according to many other conceptions of its function: channel decision-making to lawmakers and incentivize them to have in place, and engage in, sound procedures of governance, consultation, and deliberation. Second, I suspect that where I land on this question will end up altering my views on the rightness or wrongness of some recent rulings despite my priors on those cases. It might do so for others as well. 

More information about the symposium is available here. The symposium will result in a print issue of the Law Review in due course. I must again praise Bonnie DeCarlo and her Alabama Law Review colleagues, as well as the deans and staff of the Law School, for their hard work in making this event a reality. For all my complaints about "novelty," I think the symposium will actually result in new and useful contributions to an under-covered question. 

Posted by Paul Horwitz on March 23, 2022 at 11:03 AM in Paul Horwitz | Permalink


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