Luke A. Boso (Southwestern Law School) has posted Animus and Authoritarianism on SSRN. Here is the abstract:
Animus is an impermissible justification for government acts under any standard of judicial review. When officials intentionally target individuals and ideas out of hostility, the Supreme Court has—albeit inconsistently—deemed such acts irrational. At the heart of the animus doctrine are implicit limitations on the government’s power; at bare minimum, state actors must treat individuals with dignity and respect, and they must approach even unpopular ideas with neutrality. Yet, these basic principles, indispensable for pluralistic constitutional democracy, are in grave danger. Right-wing populism has ushered in increasingly authoritarian federal and state governance, fueled by political beliefs antagonistic to multiculturalism and democracy itself.
As a vital judicial check on governmental overreach and abuse, where is the animus doctrine when we may need it most? During the first and second Trump Administrations, lower federal courts have continued to check for irrational animus, thereby preserving constitutional guardrails. By contrast, the Supreme Court has more frequently weaponized animus and related discriminatory intent doctrines, selectively deploying or ignoring evidence of malintent in service of illiberal ends. The Court has radically altered constitutional meaning in recent terms, and it has done so in ways alarmingly suggestive of its own animus for pluralistic constitutional democracy.
This Article situates the animus doctrine in both historical and contemporary context. It illustrates how animus can and should function as a check against hostile authoritarianism corrosive to foundational constitutional norms of liberty and equality. This term, the Court glibly asserted that animus is simply the reality of contemporary partisan politics. The Constitution need not—and must not—transform into a toothless document insulating animus and malintent from meaningful judicial review. The United States is pluralistic and multicultural, and its survival as a constitutional democracy requires that state actors afford individuals and unpopular ideas with at least the bare minimum degree of dignity and respect.
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