On the merits, the Bybee dissent will be cited repeated by DOJ to make the arguments as to the constitutionality of the new travel EO.
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The Hawaii court had found that Trump EO 2.0 violated the Establishment clause because Trump in statements showed anti-Muslim animus /4
Even though #WavTrump did not decide Establishment issue, J. Kozinski uses mention of it there and reliance in Hawaii case to state views /5
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Js. Reinhardt and Berzon say what Kozinski is doing is wrong, because that issue is not before the Court; Kozinski say they're "insecure" /6
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As to proving animus through campaign statements, Kozinski is adamant they should not be used. Worries about "evidentiary snark hunt" /7
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Kozinski suggests campaign statements from "poor schlub" campaigning cannot be taken serious and doing so violates 1st amendment /8
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He says, citing McCutcheon, that it would chill political speech if campaign statements could later be used to prove government motive. /9
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He doesn't discuss Trump statements in office, or those of Miller etc. But seems to say all campaign statements should be off limits /10
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J. Kozinski is smart, iconoclastic, and idiosyncratic judge. His opinions (like J. Posner's) get attention because he's very smart, loud /11
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Expect the government to cite Kozinski's point (as well as Bybee's dissent, which is more on the caselaw) at every turn to support E.O. /12
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And if this case makes it to
#SCOTUS, framing it as free speech campaign issue appeals directly to Kennedy, conservatives /13 -
Kozinkski is a former Kennedy clerk by the way. All in all, this dissent matters. A lot. 14/14 <End>
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