The Bruising Battle To Come

Justice Anthony Kennedy’s concurrence in Trump v. Hawaii turned out to be a kind of farewell message from the longtime jurist, who announced his retirement yesterday after the end of the Supreme Court’s term.  His call for care and adherence to constitutional principles in the statements and actions of government officials in that concurrence has a special resonance now, as the nation moves forward into what will undoubtedly be a bruising battle over the nomination of his successor.

1200px-ussupremecourtwestfacadeThese days, every Supreme Court nomination is a huge event, but the replacement of Justice Kennedy is a special moment.  He has long been seen as the crucial “swing” vote in important, hotly contested cases that ultimately were decided by a 5-4 margin, and a centrist who might side with the liberal position in one case and the conservative position in another.  As a result, Republicans see the nomination of his replacement as a chance to reorient the Court, eliminate the “swing,” and lock in a predictably conservative majority — which is exactly what Democrats fear.  And who can blame them?  These days, with Congress often rendered inert by infighting and inability to compromise and the Executive Branch governing by executive order, the Supreme Court is increasingly seen, and has increasingly acted, as the ultimate decider of all kinds of policy issues that used to be reserved for the political branches of government.

The upcoming confirmation process will not be a high-minded moment for our country.  With passions already at full boil, and with Democrats angered by fresh memories of the Senate Republicans’ refusal to consider the nomination of Merrick Garland in the last year of President Obama’s term and Republicans recalling the Senate Democrats’ use of the “nuclear option” when the Democrats were in the majority, we can expect a heated, partisan, no-holds-barred process.

This means that the nominee, whoever it is, will receive the most exacting examination imaginable.  You can be sure that every organization, position, and activity on the nominee’s resume, from college days forward, will be put under a microscope, and every word in every opinion the nominee has written will be inspected and weighed for signs of intrinsic bias that could be used to argue against confirmation.  Can a President who has lots of skeletons in his own personal closet, and who has struggled to identify qualified individuals to fill positions in his Administration, actually select a nominee who can withstand the spotlight that will be directed at everything he or she has done?  And how many potential nominees — and their families — will quail at the prospect of such personally intrusive, withering scrutiny?

It’s not going to be pretty, folks.

The End Of Korematsu And Justice Kennedy’s Concurrence

Yesterday the Supreme Court upheld the latest version of President Trump’s travel ban, by a 5-4 vote.

The Court majority relied upon a provision of federal law that gives the President the power to “suspend the entry of all aliens or any class of aliens” as he or she sees necessary, noted that the provision falls within a recognized area of presidential powers — foreign affairs — and “exudes deference to the president in every clause,” and reasoned that the current version of the executive order was neutrally phrased and “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”  The Court majority noted the anti-Muslim statements of President Trump cited by opponents of the travel ban — which were catalogued by the dissenting justices, who reasoned that the statements established that the President acted with anti-Muslim animus that should invalidate his travel ban order — but concluded that the statements were not sufficient to overturn a neutrally structured proclamation authorized by a broad federal law given the limited review the judiciary can give to such presidential acts.

Notably, the majority overruled Korematsu v. United States, an odious World War II-era Supreme Court decision that upheld President Roosevelt’s decision to forcibly move American citizens of Japanese descent into internment camps — a decision that has long been a black eye for the nation’s highest court.  The Court rejected the dissenting justices’ argument that upholding the current travel ban was akin to the decision in Korematsu, saying that “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission” because “[t]he entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.”  The Court added, however, that the dissent’s reference to Korematsu “affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.”

9th_circuit_trump_84941_c0-45-1437-882_s885x516Also notable is the brief concurring opinion of Justice Kennedy, one of the “swing” justices on the Court whose vote was crucial to upholding the ban.  His brief concurrence ends with the following two paragraphs:

“In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”

“The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

As Supreme Court opinions go, this is a pretty strong admonishment of President Trump to stop with the vituperation and vilification and start expressing the high-minded principles on which our nation was founded.  Nevertheless, many people have criticized Kennedy’s concurrence as empty words, and an abdication of the judiciary’s role to act as a check on the excesses of the executive branch, and others have called the notion that President Trump might actually be mindful of such sentiments a “fairy tale.”

I view it differently:  Justice Kennedy realizes that Supreme Court decisions must consider the long term, and can’t simply be motivated by the passions or personalities of the moment; he fears that a precedent stating that a president’s statements while campaigning or governing can be broadly infused into judicial review of otherwise neutral executive actions could have untold consequences in the future.  But he also felt it was essential to express what many of us feel — we want a President to act presidential in every sense of the word.  So he took the extraordinary act of calling out the President on that issue.  But will President Trump hear him?