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Wednesday, May 31, 2017

Domestication or Absolute Resistance? A Semi-Supreme-Court Symposium Question

I'm not sure this post is a direct contribution to the ongoing Supreme Court symposium here. Indeed, insofar as it doesn't much address current decisions, except for those who are eager to read them as tea leaves for the future, it definitely isn't a direct contribution. But this basic thought has been on my mind for several months now, and although it's appeared here and there in recent posts, I wanted to put it directly in a post of its own. It certainly will be relevant for the next couple of Terms of the Supreme Court, and is far more relevant in watching the ongoing activity of the lower courts, whose work is largely separate from and often not even much influenced by what goes on at First Street. 

There has been a lot of talk, influenced by recent lower court opinions on the so-called travel ban (or, more propagandistically, "Muslim ban") and other administration activity, about lower courts developing a form of what some critics call "TrumpLaw," law responding to and designed especially for the Trump administration. Of course, like "Muslim ban," the label "TrumpLaw" is a form of propaganda, an attempt to argue a particular contestable point in the guise of merely describing an alleged phenomenon. But the phrase, or at least the basic thesis, should not be wholly anathema to supporters of the lower courts' recent moves. Many of them have made forceful, sometimes persuasive, arguments that the courts should act with particular regard to this administration and its actions and foibles--that, for instance, this administration requires a change to or total abandonment of the usual substantial judicial deference to actions and assertions by the executive branch. The difference, perhaps, is that "TrumpLaw" may be seen as a radical departure from existing law and in effect a lawless set of actions, while on a friendlier view, what courts do when they respond to actual circumstances on the ground is just "law" (pun on "just" intended), adapting itself to the circumstances. If the facts justifying the usual deference change, then the usual level of deference necessarily changes, and this is just regular law at work, not a departure from law. On this view, what courts are doing is fully in line with some classic views of separation of powers, in which one branch must perforce act when another branch shows flaws and failings.

As a matter of law and normative views, I have problems with some of what the lower courts have come up with, especially in the travel ban cases. But I am less concerned about that, or about "TrumpLaw" as such, than with the possibility that there is a lack of clarity and consensus about what "TrumpLaw" should be aiming to achieve. Where courts take even fully justified aggressive actions, there are reasons to worry about the precedent they are creating and its application in future cases. That concern eases or intensifies depending on what their goal or endgame is. And I do not think the lower courts either have a consensus on this or have even thought about it much in these terms. Like most of us (present company excepted, of course), they are responding to circumstances as they arrive, influenced by a fiery public discussion, and may think that the urgency of the situation takes precedence over such long-term thinking. I think that's dangerous. Without such a long-term vision, individual cases will build on each other and achieve momentum--maybe good, maybe bad. It is certainly worth thinking about these questions as they go about their current work.

Keeping in mind the usual shortcomings of binary descriptions of this sort, I think there are two possible goals lower courts--and eventually the Supreme Court--might be aiming at:

1) Domestication. Courts' responses to the Trump administration and its actions could be aimed at domesticating the administration. What I mean by domestication is that they could attempt to make the administration act more professionally and conventionally, to behave more like more establishment administrations rather than like an arbitrary, populist, or aggressive administration that is often at war with its own professional ranks (to the extent they exist in this understaffed administration) and seemingly eager to dispense with the conventional ways of doing things. Take deference. Faced with a problematic executive order, the courts could insist that the administration engage in more communication and consultation within the administration, and arrive at particular executive orders only after those orders have gone through the usual process of internal examination and criticism, careful drafting, proper legal advice, and the establishment of particular reasons for acting. They could, in short, use deference or the lack thereof to force the administration to go back to the drawing board and do it "right," or at least "right" in light of prior conventional executive branch conduct. There have been some traces of this in the opinions issued so far, which have, for instance, emphasized the lack of consultation within the executive branch and the shutting out of various participants in the usual policy formation process. But under the domestication approach, if the administration went back to the drawing board and complied with these instructions, the courts would then return to the usual level of deference, even in cases where the judges themselves might consider the substantive policies themselves ill-advised or worse. 

2) Resistance vel non. On one reading of the travel ban cases, including decisions at the appellate level and decisions dealing with the revised travel ban, the lower courts have gone beyond simple domestication as a goal. Their aggressive and creative use of doctrine has not been aimed at trying to make the administration more professional and conventional, while leaving it to make policy choices with which judges (and establishment figures, left and right) might disagree; rather, it constitutes utter resistance to the Trump administration and its policies. I mean this descriptively, not critically. Beyond the usual argument that even a conventional administration must be resisted when it trenches on individual rights (a superficially attractive point, although probably more questionable than this rhetoric makes it seem), one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se. Domestication alone, which would allow the administration to act dangerously while ensuring, by insisting on the kinds of procedures that insulate an administration action from aggressive judicial review, that the policies that result from it are not easily vulnerable to legal challenge, is not only not enough: it is positively harmful. The goal here is not regularity, consultation and communication, and procedural propriety without regard to substantive policy, but substantive "justice," with all the power and vagueness contained in that term. All this, as I say, can be argued to be justified. Its long-term implications, however, are more dangerous and suggest a potentially aggrandizing and openly political judicial branch, whatever the eventual policy or administration to which this approach might be applied. Beyond simple left-right division, it also suggests a strong resistance of the clerisy to any threats to the establishment itself. Although it might be aimed at even relatively conventional administrations, on the basis of ideologically driven policy disagreements, it certainly suggests a specific tendency to view populism itself as illegitimate and subject to aggressive judicial counteraction. That is a pretty strong normative statement, and one that it is harder to say is required by the Constitution itself.    

These two approaches can both be spotted in the travel ban cases and in much public and judicial commentary on the Trump administration. They will often overlap in particular cases. But they are definitely not the same, and the differences between them will become more apparent the longer the administration continues, and the more individual judicial decisions there are. Their long-term implications and costs and benefits are very different. As a general matter, I prefer the domestication model, and disagree with the current judicial decisions insofar as they show signs of resistance as such rather than a focus on domestication. But for present purposes I am not arguing strongly for one model over the other. I am open to arguments that domestication is not enough and that resistance is required, although I'm not convinced. And I am certainly open to arguments about the relative, and different, costs, benefits, and long-term dangers--not least to democratic legitimacy--of either approach. 

Regardless of my own position about which approach is preferable, I think these are the two main options available to the courts right now; that they are not the same; that each has its own positive and negative aspects and long-term implications; and that the courts themselves have tended to mix the two approaches without sufficient thought about which approach to take. I would feel a lot better if there were more open consideration, from judges, scholars, and commentators, about which goal to pursue. I think the better goal is to use legal doctrine to force the administration to do a more professional job, which in the end should place even terrible policies (constitutional concerns aside) more clearly in the realm of politics, not to be disturbed by the courts but rather left to the political branches and the public. It is certainly possible to think that an administration policy is terrible, the worst one has seen, while thinking it is sufficiently legally proper to be a matter of political debate rather than judicial intervention. But I am open to being persuaded otherwise. What worries me is the sense that courts are acting in the moment, without either considering these two different models or making clear which one they are aiming for. They should be more self-conscious about this and more transparent about their goals, even if that transparency makes the goal harder to achieve without critical reaction. In the meantime, rather than simply supporting or opposing these decisions tout court, scholars and public commentators (and, of course, the increasing number of public commentators who quite incidentally are also scholars, although not acting in an especially scholarly fashion) should put these ideas on their radar screen, be straightforward about their own preferences, and use these two models to provide a more sensitive analysis of the decisions we are getting from the lower courts. 

The connection to the Supreme Court, of course, is that as the Court is confronted with these and other cases, it too will have to come up with a general approach. Prognosticators who talk in general terms about who will "win" in these cases, generally by engaging in armchair analysis of the ambitions and fears of Justice Kennedy and a couple of other Justices--and often trying to signal Justice Kennedy that he must follow one path or another if he wants to secure his reputation and legacy or to manipulate him into a particular vote--talk mostly and only about the administration "winning" or "losing." But I suspect that if the Court does take on a more active role in response to this administration, the more important question will be whether a majority of the Court takes a domestication or a resistance approach rather than who wins or loses. Justice Kennedy, for instance, could vote against the administration while taking either approach. To the extent that they are not simply working the refs, and there is a lot of that going on, I think progressive "academic" writers engaged in public commentary, on Twitter or elsewhere, have been overly optimistic about the likely outcome of these cases. I think their predictions would be better and more thoughtful if they talked more about the kind of approach the Court should or will take in responding to the administration, rather than in terms of simple wins or losses. I think they would also be more influential in their efforts to sway the Court or individual justices. I think Justice Kennedy could be persuaded to engage in a domestication approach more easily than a pure resistance approach, and so could some conservative justices. Regardless, I think this is the question that confronts the Supreme Court, and I hope the justices and others think more, and more openly, about this. I do not assume one or the other approach will win permanent majorities. But I do think it describes what we will see happening on the Supreme Court over the next couple of years.   

Posted by Paul Horwitz on May 31, 2017 at 10:56 AM in 2016-17 End of Term, Paul Horwitz | Permalink

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