Source: Bigstock

With the travel-ban ruling, Kennedy (in his concurring opinion) echoed Scalia’s reasoning. Examine the law, not the intent. For Sotomayor, though, it was all about intent. All that mattered to her was the “evil motives” of the directive’s author. Sotomayor went so far as to accuse the majority of hypocrisy, because, in the Masterpiece Cakeshop case, the conservatives found in favor of the Christian baker due to anti-religious bias on the part of the Civil Rights Commission members who judged him. Why, she asked, did the anti-Christian bias of the commission members matter, whereas Trump’s (supposedly) anti-Muslim bias didn’t regarding the travel ban?

Sotomayor is comparing apples to guavas. The language in Trump’s travel directive was clear and unambiguous enough for the court to not have to rely on intent. In the case of the baker, on the other hand, what the court was examining was not the antidiscrimination law under which the baker was sanctioned (the court found no fault with the law), but rather the actions of the Civil Rights Commission members, who had a duty to decide the case with impartiality (like any judge). The majority found that the adjudicators had not been impartial. In a trial or hearing, that matters.

With politicians, on the other hand, there is no expectation of impartiality. The laws they write or the directives they sign must be constitutional, but in their views, their debates, and their rhetoric, of course they can be biased (LBJ’s rhetoric indicates that he may have signed the Civil Rights Act for racist reasons, but that doesn’t invalidate the law). Politicians are supposed to have biases…ideological biases, party biases, biases toward their voter base and donors. What mattered in the travel-ban case was not whether Trump had a bias, but whether the travel ban was within his power to enact (it was), whether it had a legitimate purpose for being (it did), whether the language was neutral (it was), and whether the language was plain enough that intent didn’t have to be examined (it was).

In Kennedy and Sotomayor, we see two very different judicial approaches. Kennedy is a scholar who is willing to take legislative intent into account when necessary (Hialeah) and when not (the travel ban). In Sotomayor, we have an ideologue who dismisses complexities and nuances, someone who decides in advance that a law is bad, and when there’s no objective way to make her case, she relies on mind reading. If we had a court packed with psychic Sotomayors, pretty much every law that blacks, Latinos, feminists, and gays don’t like would be struck down because, no matter the wording of the law, the Sylvia Brownes in black would render judgment based on their interpretation of intent.

Intent policing is a weapon that the left routinely uses against the right. When a guy like Jordan Peterson—a supremely articulate man who expresses himself in clear and unambiguous language—is called a Nazi by a crowd of SJWs or a semi-retarded schmendrick with a laptop and an agenda, the accusers can never point to any actual “Nazi statements” the man has made. So, they do the Amazing Kreskin shtick and claim that they (and only they) can suss out his real intent. Critiques consisting entirely of mind reading were as much a pain in the ass to me thirty years ago as I’m sure they are today to people like Peterson, Ann Coulter, and the other targets of leftist “scanners.” But when such techniques are employed by Supreme Court justices, “pain in the ass” quickly morphs into “real frightening shit.”

Had Hillary been elected, the psychic Latina would now represent the SCOTUS majority. If that’s not reason enough for the Never Trumpers like little Benny Shapiro to thank their lucky stars of David that Trump won, I don’t know what is.

Comments on this article can be sent to the .(JavaScript must be enabled to view this email address) and must be accompanied by your full name, city and state. By sending us your comment you are agreeing to have it appear on Taki’s Magazine.