The country’s highest court has a strategy for combatting the craziness in Washington: stop focusing on the President.
- By Quinta JurecicQuinta Jurecic is associate editor of Lawfare.
Something important is missing from the Supreme Court’s per curiam decision granting the U.S. government’s petition for certiorari in the travel ban case and staying in part the relevant injunctions. Or, rather, someone is missing: Donald Trump.
That’s not to say the order doesn’t mention the president, of course. After all, the case is titled Trump v. International Refugee Assistance Project, or IRAP for short, and, by necessity, the order references the fact of his presidency and the details of his administration’s actions. But the person of Donald Trump — Trump as an individual, distinct from his official role — is notably absent from both the per curiam ruling and Justice Clarence Thomas’s partial dissent, in which Justices Samuel Alito and Neil Gorsuch joined.
This absence contrasts sharply with Trump’s starring role in the opinions of the lower courts, which relied heavily on Trump’s off-the-cuff comments in ruling against the revised executive order. These opinions featured Trump — who is, as he always reminds us, good for ratings — often to the point of including pages of descriptions of Trump’s pre- and post-inauguration statements. The Supreme Court’s decision, on the other hand, does not mention Trump’s comments at all.
All presidencies are shaped by the particular individual occupying the office, but Trump’s atypical behavior and his stream of unfiltered statements on Twitter and elsewhere have offered an unusually intimate look into the psyche of the sitting president. As a result, it has become difficult to separate the office of the presidency from Trump himself; the barrier we typically maintain between the human frailties of the individual serving as the chief executive and the august office itself begins to crumble when the person so ostentatiously displays those frailties and makes them central to his public performance of his job. Trump’s tweets have become a leading example of this crumbling distinction: The president posts from @realDonaldTrump both to announce his selection for a new FBI director and to harass cable news hosts and networks that he dislikes.
While we’ve seen the effects of this blurring of man and institution in Trump’s interactions with numerous entities across various realms, it is most striking in his relationship with the judiciary. Benjamin Wittes and I have argued that this dynamic is behind the aggressive posture of the lower courts toward the administration on the travel ban cases: Judges are not just ruling against the president, but against this president.
In a Lawfare piece last week, Jack Goldsmith argued that the justices’ recent order in IRAP represents an effort to “turn down the temperature” on civic discourse with a more “sober, reasonable legal analysis.” Much has been written about the atypical conduct of the lower court judges who have handed down decisions against the travel ban, many of whom lurched well ahead of settled law in an area in which the judiciary usually affords the executive a great degree of deference.
Goldsmith argues that in many cases, Trump seems to have pulled components of public life and civic institutions into a “downward spiral of Tit-For-Tat norm violations.” Trump behaves aggressively, and the courts behave aggressively in return. A study of these rulings suggests that this behavior is very much in conversation with Trump: The more aggressive and rhetorically assertive a travel ban ruling is, the more present Trump himself tends to be in the opinion — in the form of the court’s reliance on Trump’s offhand statements. In contrast, the more sober in tone and restrained in substantive outcome an opinion is, the less it tends to focus on Trump’s comments and behavior. The Supreme Court’s ruling is at the far end of that spectrum — a piece of jurisprudence that Goldsmith regards as level-headed and statesmanlike and that, not coincidentally, excludes the person of the president altogether.
How strong is the inverse correlation between Trump’s presence in an opinion and its aggressiveness? Nearly perfect — at least if you confine the discussion to court rulings against the revised travel ban. There are several relevant decisions here: from the U.S. District Courts for Hawaii and Maryland and, on appeal from both district courts, from the U.S. Courts of Appeals for the 9th and 4th Circuits.
The rulings by the 4th Circuit and Judge Derrick Watson of the Hawaii District Court are particularly strident in tone. Dismissing the government’s argument that the executive order affects only a small proportion of the world’s Muslim population, Judge Watson writes sharply — in a paragraph preceding several pages’ worth of statements by Trump and his associates as to the nature of the travel ban — “The illogic of the Government’s contentions is palpable.” Then, in a separate ruling converting his temporary restraining order against the travel ban into a preliminary injunction, the judge insists that it’s appropriate for the court to consider Trump’s statements as evidence of impermissible religious animus under the plaintiff’s Establishment Clause claim, proclaiming: “The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.” Excluding references to the titles of court cases and other citations, Trump’s name appears 23 times over a 43-page opinion.
Similarly, the 4th Circuit’s ruling upholding the Maryland judge’s preliminary injunction opens with a thundering declaration of the constitutional responsibilities of the courts before running through eight pages’ worth of statements by Trump and his aides on the travel ban both pre- and post-inauguration:
The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.
As Andrew Kent wrote, “To the extent judges see themselves as part of the resistance to the lamentable President we are now saddled with, Milligan’s words must sing an invigorating kind of defiance.” Trump’s name appears in the majority opinion 45 times over 68 pages.
Both courts jump quickly to an Establishment Clause analysis, essentially skipping over the statutory questions normally treated first for reasons of constitutional avoidance — a move that underlines the aggressiveness of their rulings.
In contrast, Judge Theodore Chuang of the Maryland District Court takes a more measured approach, beginning his analysis of the order’s legality with a study of the plaintiff’s statutory claim under the Immigration and Nationality Act (INA) before moving to the Establishment Clause issue. His opinion is also notably absent the strident rhetoric or the citation of blockbuster cases like Milligan. But Judge Chuang does incorporate seven pages of pre- and post-inauguration statements by Trump and his associates, on which he relies to ultimately conclude that the executive order likely violates the Establishment Clause. Trump’s name appears in the opinion 43 times over 43 pages.
The 9th Circuit opinion, which upheld Judge Watson’s preliminary injunction, is generally more measured and careful in tone. To be sure, the ruling has its flashes of excitement. The court makes the eyebrow-raising decision to cite Justice Frank Murphy’s dissent in Korematsu v. United States and declares, “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under § 1182(f).” But generally speaking, it thunders much less than the others.
Substantively, the court confines itself to the statutory questions alone, holding back from Establishment Clause analysis entirely to find that the revised order overstretched the authority delegated to the president under the INA. Notably, the judges cite Trump’s statements only once, pointing to a tweeted assertion that “we need a TRAVEL BAN for certain DANGEROUS countries.” The court uses that tweet as supporting evidence that the ban relies on nationality alone as a marker for national security risk yet fails to make any finding that nationality and security risk are linked — meaning that the order does not meet the statutory requirements set out in Section 1182(f) of the INA.
The court, in other words, cites Trump to make the point not that the ban targets Muslims but that it targets a handful of select nationalities — itself an argument by the Solicitor General’s Office approached by the other courts with skepticism. Notably, the judges take care to justify their citation of Trump’s tweet as within the bounds of appropriate judicial behavior, flagging a statement by Press Secretary Sean Spicer that the president’s tweets constitute official statements and pointing to the Federal Rules of Evidence regarding “judicial notice of adjudicative facts.” Trump is certainly present in the opinion but far less so than in the other rulings. While the court uses the president’s words to rule against the ban, it does so by accepting at face value his own stated rationale for the executive order, rather than using his language to divine his hidden purpose. The judges also take pains to make clear that their citation of his tweet does not stem from a controversial legal rationale, such as the other courts rely on in order to read Trump’s statements into their Establishment Clause analysis.
Trump’s name appears in the opinion four times over 77 pages (excluding the opinion’s cover page and list of counsel at the end).
My point here is that when the lower courts have ruled against the travel ban, they have effectively done so in conversation with Trump: not President Donald Trump in his official capacity, but the person of Trump himself, pointing extensively to the many comments that seem to display his innermost thoughts on the issue of the travel ban. It’s for this reason, I think, that the judges are so willing to consider statements by Trump from before his inauguration: The courts are reading Trump’s statements in both his official and unofficial capacity as equally representative of his personal thoughts. While the Justice Department has argued that Trump’s swearing of the oath represents a profound transition from his role as a private individual to his official role as the chief executive, the courts seem not to be concerned with this distinction. (Judge Stephanie Thacker’s concurrence in the 4th Circuit ruling, which would uphold the preliminary injunction based on an Establishment Clause analysis of only post-inauguration statements by Trump, is an exception.) Because Trump has eroded the boundary between the personal and official activities of the individual who holds the office of the presidency, it’s the man himself — not the office — with whom the courts find themselves confronted and to whom they have responded in whatever form he appears, from the campaign trail to the Oval Office.
Goldsmith writes, “Trump has taken everyone (well, many of us) down a bit toward his screaming, exaggerating, temperature-raising, disrespectful, uncharitable, un-self-aware, norm-defying level.” In the lower court decisions, Trump is a loud voice in the room; the more aggressive the court’s opinion, the more loudly his “screaming” and “exaggerating” echoes through it. It’s as if Trump and the judges are engaged in heated argument with one another. I suspect there is a particular pattern at work here: The more willing a court is to open its ears to the president’s utterances, the more it feels the need to respond directly to him, which manifests both in the form of strident rhetoric and an aggressive reading of precedent to allow the court to incorporate Trump’s comments into its analysis in the first place.
The Supreme Court solves this problem by removing Donald Trump from the room entirely and dealing with the presidency devoid of him. In its opinion, Trump the man is totally silent. There are zero quotations from his public comments or tweets. Substantive policy of the travel ban aside, the court could have been writing in response to any administration; its ruling engages with the institution of the presidency but holds back from interacting with the foibles of this particular president. Trump’s name appears in the opinion just three times over 13 pages. (Interestingly, his name does not appear in the dissent at all.)
This is, I suspect, the key element that allows the court to take an approach that is “sober and reasonable in substance and temperate in tone,” to use Goldsmith’s phrasing. It’s easier to “interject a better model of behavior into our corroded institutions and discourteous civil discourse,” as he writes, when you’ve thrown the screaming person out of the room.
The Supreme Court, of course, had an unfair advantage over the lower courts in getting to this statesmanship: It was not ruling on the merits but rather on a petition for certiorari and a petition for a stay of the two preliminary injunctions against the executive order. The justices therefore had the luxury of stepping back a bit — at least in this go-round — from the most heated points of contention and from those components of the plaintiffs’ constitutional and statutory claims to which Trump’s intemperate comments are relevant.
The problem, however, is that it’s very unlikely that the justices will be able to remain at such a dignified distance from Trump in the long term.
The moment of reckoning will not necessarily come when the justices rule on IRAP (oral argument is currently scheduled for October). Under the expiration dates established by the executive order, as many commentators have noted, both the travel ban and the halt on refugee admissions are set to lapse before the court takes up the case, so the justices may simply moot out IRAP without engaging on the merits.
But this administration has a way of making its peculiarities felt. If the president keeps behaving as he has — and there is no indication that he intends to stop anytime soon — sooner or later the Supreme Court will surely confront the questions the lower courts have faced in the travel ban cases: To what extent should courts consider extemporaneous comments by the president, both before and after he has been sworn into office? What if the president’s comments directly contradict the solicitor general (as when Trump insisted on Twitter that the executive order was a travel ban targeting Muslims, which the acting solicitor general had strenuously denied)? Can an otherwise acceptable policy be rendered unacceptable by the president’s words and conduct? The near-constant stream of outrageous statements from the White House and Trump’s Twitter feed practically ensures that these questions will come before the court in some form or other. Will the court be able to maintain quite the air of sober statesmanship when it can’t exclude the screaming person from the conversation?
The basic problem is that the president makes the worst of himself very hard to ignore — and when courts are faced with that ugliness, they have found it difficult to focus as they normally would on the legal and institutional questions at stake, rather than on the brute fact of Donald Trump’s presence. He has a striking ability to take up space, crowding out other ideas and styles of discourse other than the inflammatory mode to which he himself is partial. I suspect the Supreme Court may not prove as immune from this in the long run as it showed itself to be last week.
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