The nub of Professor Smith’s Response is that animus doctrine reflects the polarization of our culture to the point where the only common ground is a consensus that “it is wrong to act from pure hatred or hostility.” That realization both unlocks a doctrinal box but also warns of its contents. If hatred or hostility is the only phenomenon we can still agree to condemn, then of course advocates will argue that their opponents acted on exactly that motive. The problem is that if courts take the bait and explain their decisions on such grounds, those opinions will be “at least as problematic and polarizing as similar indictments made by mere pundits or politicians or lawyers.” Winners will bask in the glow of having won a decision that officially validates their superior moral credentials, losers will be embittered by landing on the wrong side of a moral judgment they believe deeply misconceives their motivations, and any hope of a post-war Westphalian settlement will disintegrate in the aftermath of a winner-take-all game of constitutional morality hardball. How much better to have lost simply because a three-part balancing test came out against you!]
And yet, one might object that sometimes what a losing litigant has done really is wrong. Tort defendants can be assessed punitive damages for reprehensible conduct and criminal defendants can have their sentences increased for essentially the same reason. So too, government officials can sometimes act based on either their own or their constituents’ explicit dislike of or desire to oppress or instantiate the lesser status of a group. Why would Virginia have banned interracial marriage involving whites, while allowing non-white racial and ethnic groups to intermarry among themselves to their hearts’ content? It’s hard to see any justification except a belief that whiteness—and no other racial identity—is a particularly valued thing that needs its purity protected. The Supreme Court had no problem saying that and condemning it for what it was. On the rare (one hopes) occasions when it is appropriate, it should continue saying that, or its equivalent.[
But this is not what Professor Smith takes issue with—for good reason, since my Article focuses more on what he describes as a mitigation strategy that assumes explicit conclusions of subjective bad intent should be minimized. Instead, Professor Smith argues that one cannot—or at least that my Article does not—offer a theory of animus that successfully mitigates that risk and steers animus doctrine away from inevitable accusations of subjective hatred. Professor Smith is correct that much of my Article focuses on that effort. This Reply responds to his argument.