No help from the bench...

No, the Supreme Court Won’t Stop a Runaway President

The travel-ban ruling today contained a strong rebuke to Trump—but a warning to anyone expecting the Court to be a last line of defense.

By RICHARD PRIMUS

The Supreme Court’s decision upholding President Trump’s travel ban on Tuesday came with a number of interesting wrinkles. It contained an implicit rebuke of Trump’s motives in signing the order, even though it let the order stand. And it repudiated Korematsu vs. United States, a discredited 1944 decision that allowed the U.S. to send Japanese-American citizens to internment camps during wartime, even as it upheld a policy with a discriminatory motive on grounds similar to that 70-year-old ruling.

But the decision’s most important takeaway is the one articulated between the lines of a short concurrence by Justice Anthony Kennedy: When a real threat to the American constitutional order comes – when a president decides to act contrary to fundamental constitutional values – we cannot count on the courts to save us.

Especially since Brown v. Board of Education held school segregation unconstitutional, many Americans have expected the Supreme Court to stand up for constitutional rules that other government actors refuse to respect. To be sure, not everyone approves of each decision the Court makes about what the Constitution requires, but almost everyone can point to some important modern decisions in which the Court has vindicated what they see as fundamental rights. For some, it might be cases recognizing the individual right to own a gun. For others, it might be the right to an abortion. But however each of us rates specific decisions, the general assumption among most Americans is that the Supreme Court acts as a crucial final check when someone in power crosses the line.

The reality is more complicated. Sometimes the Court is willing to deem a government action constitutional by pretending that the government’s underlying purpose was something acceptable, rather than something forbidden. And sometimes the Court decides that even if a governmental action is or might be fully unconstitutional, there's simply nothing to be done about it by the justice system. In other words, the Court sometimes lets unconstitutional behavior stand. If Tuesday’s decision is read closely, it is possible to see both of those limits at work. Indeed, it is reasonable to read the opinions to mean that at least five Justices, not just the dissenting four, believe the President acted unconstitutionally in proclaiming his travel ban. But just because something is unconstitutional doesn’t mean that the Court will strike it down.

Consider first the majority opinion by Chief Justice John Roberts, which found a way to acknowledge the President’s unconstitutional motivations without concluding that the policy itself was unconstitutional. Roberts’s opinion spent no less than a page and a half chronicling some of Trump’s statements, as a candidate and as President, suggesting that the travel ban is motivated by anti-Muslim animus. (The ban, which restricts travel from Iran, Syria, Libya, Yemen, Somalia, Venezuela and North Korea, is the third version of an order that originally applied only to a group of Muslim countries.) An anti-Muslim motive would make the ban unconstitutional under the First Amendment, which forbids the government to disfavor particular religions. But that’s not what Roberts ruled. In the end, the Chief Justice decided for the President on the theory that the policy “can reasonably be understood to result from a justification independent of unconstitutional grounds.” This is what constitutional lawyers call the “rational-basis test”: even if the actual reason the ban exists is rooted in an unconstitutional motive like religious bigotry, the Court will let the ban stand if the judges can imagine some legitimate interest that could have motivated the order.

In framing his analysis as he did, Roberts found a way to sustain the ban without denying Trump’s anti-Muslim bias. Given the public record, saying that the ban was in fact not motivated by animus toward Muslims would merely have made the Chief Justice look foolish, and Roberts is nobody’s fool. So he wrote an opinion according to which the ban’s validity does not depend on the President’s having constitutionally acceptable motives. Roberts strongly hinted that Trump’s expressed attitudes run contrary to the values of the First Amendment: In addition to acknowledging Trump’s record of bigoted statements, Roberts included a long paragraph about previous Presidents who used their bully pulpit to support “the principles of religious freedom and tolerance on which this nation was founded” and then wrote that, unfortunately, Presidents have “performed unevenly” in living up to our constitutional ideals. That doesn’t exactly count as a public shaming of President Trump, but it’s nonetheless clear that Roberts is telling an in-the-know audience that he isn’t blind to Trump’s bad behavior, even though he’s upholding the entry ban.

Justice Anthony Kennedy also clearly felt the need to express his disapproval of the entry ban, even as he voted to sustain it. In a short concurring opinion, Kennedy wrote that sometimes courts must let unconstitutional actions stand, because not every unconstitutional action has a judicial remedy. That idea—that there is a difference between what is unconstitutional and what courts can strike down—is counterintuitive to many well-educated Americans but nonetheless a well-established principle of constitutional law. Under what constitutional lawyers call the “political question doctrine,” some constitutional issues must be settled by decisionmakers other than judges. (For example, courts will not second-guess impeachments.) In Tuesday’s decision, Kennedy insisted that it is precisely those officials to whom judges give substantial deference—like the President—who must be especially scrupulous about keeping their own behavior within constitutional bounds. “It is an urgent necessity,” Kennedy wrote, that such officials adhere to “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[.]”

This hand-wringing is curious from Kennedy. Among modern Justices, Kennedy has been one of most willing to use judicial power aggressively. He does not often say “There’s a serious constitutional problem here, but I’m not the one to fix it.” And given Kennedy’s decision to stay his hand on the entry ban, it is not clear how he thinks the “urgent necessity” of getting officials to behave constitutionally can be met. Surely Kennedy does not think that President Trump is going to start taking constitutional limits seriously now that Kennedy has reminded him that he has a responsibility to discipline himself. On the contrary, today’s lesson for President Trump is that he can institute policy as he likes and the Supreme Court will not stand in his way, even when the Justices know that his motives were unconstitutionally discriminatory.

If the President is constitutionally heedless and the Court is inclined to defer, it’s no wonder that the world is a bit anxious about whether the United States remains committed to fundamental constitutional liberties. Kennedy’s opinion communicates his awareness of that anxiety. His uncharacteristic deference to the President feeds it.

In a powerful dissent, Justice Sonia Sotomayor argued that the ban should be struck down even on the majority’s deferential standard, because there is no reasonable way to understand the ban apart from the President’s bigotry. In the course of her argument, she drew parallels between Tuesday’s decision and Korematsu v. United States. Sotomayor’s didn’t argue that the entry ban is the exact equivalent of the Japanese wartime internment; history does not repeat itself that precisely. But as in Korematsu, Sotomayor wrote, the Court is letting a weak national-security rationale validate a policy that everyone should recognize as unconstitutional bigotry. Naturally, Chief Justice Roberts denied the parallel. “[I]t is wholly inapt,” he wrote “to liken [Korematsu’s] morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” And to further distance his own ruling from the much-condemned decision in Korematsu, Roberts took the occasion to repudiate Korematsu entirely, something no prior majority opinion had done. Korematsu, Roberts wrote, was “gravely wrong the day it was decided” and “has no place in law under the Constitution.”

The first of those phrases—“wrong the day it was decided”—is a deliberate echo of something the Court said in 1992 about Plessy v. Ferguson, the infamous 1896 decision upholding racial segregation. The other—“no place in law under the Constitution”—is taken from Justice Robert Jackson’s dissent in Korematsu itself. But for the true importance of today’s ruling, it’s more fitting to look at another one of Jackson’s other great opinions. In Youngstown Sheet & Tube Co. v. Sawyer, decided eight years after Korematsu, the Court invalidated President Harry Truman’s seizure of the nation’s steel mills—a seizure Truman said was necessary to avert a strike that would imperil national security during the Korean War. The Court’s willingness to reject Truman’s argument demonstrated that at least in some cases, the Court was willing to police the limits of presidential power, even where the President claimed a national-security justification. But Jackson warned his readers against inferring that the Court would always be so stalwart. In Jackson’s understanding, courts simply lack the institutional heft to stand against a truly abusive President. So when a President who poses a real threat to the constitutional order comes, Jackson wrote, the courts will not save the country. Salvation must come from Congress, responding to an energized electorate.

To be sure, courts do play an important role in checking Presidents, as the Youngstown case itself demonstrated. And even in the entry-ban saga, the judiciary did not give the President free rein. The first two iterations of the entry ban were struck down, after which the President retreated to the current version. Even with respect to the third version, the outcome could have been different: A Supreme Court including Merrick Garland rather than Neil Gorsuch would likely have reached a different conclusion, and even the Court with its current composition could be imagined rejecting this third Trump policy. But as things have actually played out, it is hard not to imagine Justice Jackson today pointing to his Youngstown concurrence, not his Korematsu dissent. Yes, the official repudiation of Korematsu is nice. But the larger lesson of today’s decision may be about the limited role that the judiciary will play in checking the power of a dangerous President.