(SCOTUS Term) Things Are Every Bit as Bad as They Appear, Part I: The Travel Ban

When I accepted Howard’s invitation to join this June’s Supreme Court symposium almost a year ago, I signed off by hoping for an eventful term. Lesson learned: be careful what you wish for.

In writing about the events of the last few days, it is important not to be hyperbolic. But it is equally important not to just write everything off as business as usual and shift into insider baseball or law geek mode. The decision in Trump v. Hawaii was a momentous one, the kind of bet-the-reputation-of-the-courts opinion that will remain at the center of our debates about the proper role of the courts for generations to come.  And the decision of Justice Anthony Kennedy to retire at this moment in our political and judicial history raises the prospect of the most significant shift in our jurisprudence since at least 1936.

In this blog post, I offer a few thoughts on the former; in my next, I will take on the latter.

Many people have written sharp and appropriately anguished critiques of the Court’s decision to uphold the Trump administration’s infamous travel restrictions in Trump v. Hawaii. Here I want to emphasize two points that have been made by a few commentators but have not been at the heart of the critiques.

First, despite all its citations and its well-written sentences, the majority opinion is incredibly intellectually lazy.  The opinion relies on a small set of generally accepted decisions holding that the President has quite broad powers in the areas of immigration, foreign affairs, and national security; that those powers are at their apex when Congress has set up statutory schemes that grant the President broad discretionary authority; and that judicial review of such decisions is limited and deferential.  Taking those cases as directly on point, the majority of the Court treats this case as an easy one, squarely within the heartland of that rule.

But Trump v. Hawaii wasn’t a case about the existence of deference; it was a case about the limits of deference.  Constitutional law is full of deference doctrines: some extreme, some narrow, some based on substantive separation of powers or federalism concerns, some based on more pragmatic implementation concerns. As a general rule, deference doctrines have limits. They are presumptions about competence or authority or official good will, but they are only presumptions.  They can be rebutted by some fact or factor or combination of circumstances or evidentiary showings.

In most areas of constitutional law, direct evidence that the decisonmaker was biased is one of the primary facts that triggers an end to deference and requires serious judicial inquiry. This rule has particular force when the bias takes the form of religious, racial, or ethnic discrimination, as those forms of bigotry constitute particular affronts to the Constitution’s text and values.

To many of us, it was self-evident that this case was covered by that meta-doctrinal principle, that the deference normally due the President in immigration matters ran out when he put his own biases on the table. I knew that other disagreed and was braced for an opinion that disagreed with me on either the law or the facts (for example, an opinion holding that the Establishment Clause did not apply in this context or that the President’s comments could not be considered or did not establish bias). What I was not prepared for was an opinion that completely failed to engage with the many precedents from all over the Court’s jurisprudence suggesting that deference runs out in the presence of direct evidence of bigotry or to offer a positive account of the boundaries of judicial deference in this crucial area of the law.

Trump v. Hawaii was, thankfully, a case of first impression, because it involved the extremely rare situation in which a President provides substantial direct evidence of his or her bigotry while acting in an area of broad executive authority.  The Court acknowledged that we were operating in this new territory—long a staple of academic hypotheticals—and then completely ducked all of the important normative and doctrinal questions that arise from those sorry facts, simply applying the pre-existing rules that were designed to apply to run-of-the-mill presidential actions.

Second, if taken literally and applied broadly, the doctrinal approach that the majority assumes its way into is staggeringly broad.  (For a heroic attempt to read the opinion's deference more narrowly, see Kate Shaw's reaction.) The majority opinion bristles and huffs at Justice Sotomayor for suggesting that its approach or reasoning has anything in common with the Court’s notorious opinion in Korematsu, despite the many historical and jurisprudential parallels so well-articulated by Fred Korematsu’s descendants, but the truth of the matter is that on doctrinal terms (though obviously not consequentialist ones) the opinion was in some important ways worse than the Court’s opinion in Korematsu.  In Korematsu, the government’s prejudices had to be ferreted out indirectly through circumstantial evidence, critiques of its policy reasoning, and appeals to general social facts.  As Jed Shugerman pointed out in an essay making a similar point, the direct evidence that the government was lying and that its national security concerns were trumped up nonsense wouldn’t come to light until decades later.

Trump v. Hawaii is different.  Here the President has proudly and repeatedly embraced a desire to discriminate against Muslims, has doubled down on his prejudice at every turn, has asked his advisors to draw up a policy to implement that bigotry, and has continued to publicly explain the policy in terms of his antipathy to adherents to a particular religion.  It is as if President Roosevelt had made the desire to lock up Japanese Americans a centerpiece of his election campaign, had used his fireside chats to stoke racial prejudice, and then—in a very Jack Nicholson, A Few Good Men, sort of way—publicly embraced the racist grounding of his own policy.

Korematsu was a horrific decision that smart and honorable folks saw through and denounced at the time.  Its fundamental flaw was that it refused to impute to the executive the prejudice necessary to break deference in the face of an overwhelming circumstantial case that the government was guided by such illicit aims.  In Trump v. Hawaii, no such ferreting out of indirect evidence was necessary. The President said the quiet parts out loud.  And the Supreme Court said there is nothing we can do about it.  That is not deference; it is abdication. It is dangerous and it is wrong.