Does It Matter Exactly How the Supreme Court Mangles the Law to Help Trump?
by Neil H. Buchanan
When Anthony Kennedy was still on the bench, and especially in his final term, the Supreme Court issued many horrible decisions. Citizens United: Shelby County v. Holder; the anti-union case in 2018 (Janus); the Ohio voter purge case (Husted v. Randolph Institute); Masterpiece Cakeshop. The list is a long one.
One of the Court's worst decisions in decades, of course, was the Muslim Travel Ban case (Trump v. Hawai'i), which is widely and rightly considered to be this generation's Karematsu -- a description so apt that John Roberts felt compelled to include in his opinion a doth-protest-too-much section that essentially said: "We're not issuing a new Korematsu. See, we're explicitly admitting decades later that Korematsu itself was a bad decision. How dare you say that our new case is like that other case ... that we have now disavowed?!"
What made the Muslim Travel Ban case egregious as a legal matter was its tortured excuses for ignoring the boatloads of evidence of bias on the part of Donald Trump and his Administration, an example of judicial rationalization that is still breathtaking in its dishonesty. Another very recent decision also exposes the majority's willingness to engage in judicial duplicity.
My question here is whether the particular kind of duplicity that the Court's conservatives use when reaching these decisions matters. I think it ultimately does not, but it is at least worth exploring the question.
If "judicial activism" has an objective meaning (rather than simply being an opportunity for conservatives to call a decision "something that I disagree with that liberals like"), it is when a court clearly decides the outcome of a case notwithstanding the law and then twists the law to reach that outcome. Legal realists will argue that there is a lot of gray area -- perhaps that it is all shades of gray -- because nearly every case can be seen as a reverse-engineered outcome, and we do not know with certainty what went through the jurists' minds as they made their decisions. Even so, the Muslim Travel Ban case stands out as an act of rank judicial rationalization for a preferred political outcome.
After a relatively low-volume term that ended last month -- a term nonetheless blighted by the post-Kennedy hyper-conservative majority's distressing decision to allow partisan gerrymandering, clearly to the net benefit of Republicans -- the Court has now issued a ruling allowing the Trump Administration to divert funds to build "the Wall," that is, the border barrier between the U.S. and Mexico that is Trump's obsession.
Over this past weekend, Professor Dorf published a column describing the Court's order in Trump v. Sierra Club as a decision not formally on the merits but that truly is ultimately a ruling on the merits. The Court's majority decided that Trump can divert funds that had been appropriated for other purposes, but as a formal matter, the order merely said that the Administration could proceed with its plans while the case is being litigated -- potentially to be told to stop later, if it loses on the merits.
Even if that is a terrible decision -- and Justice Breyer's dissent makes it clear not only that it is a terrible decision but that the majority simply refused to agree to a compromise that would have prevented the supposedly "irreparable injury" that Trump would have suffered without actually allowing the funds to be spent before the merits had been decided -- the question is whether taking a different path to that terrible decision would have been better, worse, or simply unimportant.
[Correction: Technically, the Court's order in this case was not about the prior authorization for diverting funds for a declared national emergency but about the authorization in the spending bill itself for diversion for "unforeseen military requirements." I acknowledge and regret the error, but because the difference does not change my analysis here, I am leaving the text as originally written.]
Professor Dorf concludes his column by saying that "the majority did not think that giving the government the ability to finalize its contracts but not begin wall construction would sufficiently address the government's need for emergency relief. And why not? Perhaps because five justices of the Supreme Court think that the emergency justifying extraordinary relief from the Supreme Court is an urgent need to build Trump's wall."
That is, the Court's hyper-conservatives are not being conservative in any recognizable intellectual or even intelligible sense (no known version of judicial or political conservatism being on display here). They are simply saying that irreparable harm is whatever Trump's lawyers say it is -- which in this case means Trump not getting what he wants. That is a truly strange way to twist the doctrine, because it means that Trump must always get his way while a case is pending.
Among other things, this completely trashes the idea of preservation of resources. After all, if Trump loses on the merits -- and again, Dorf's point seems to be (or at least I am willing to say) that the five conservatives must have already decided that Trump will not lose on the merits -- then money will have been spent and resources wasted (in irreversible ways) on something that never should have happened in the first place.
Moreover, the fundamental issue here is whether the separation of powers means anything in a world in which Trump has decided simply to seize and distort emergency powers. The Court's conservatives are saying that the world's biggest non-emergency -- a situation on the border that has been unsettled for decades and that Congress has repeatedly decided not to address in the way that Trump wants it to -- is an emergency because Trump says it is important to him.
This mirrors the Court's non-reasoning in the Muslim Travel Ban case, where Kennedy/Thomas/Roberts/Alito/Gorsuch agreed that we need not -- indeed, that the Court cannot -- look at reality in deciding whether the executive is abusing the powers that the legislature conferred upon him. All that apparently matters is that the executive wants to do it, and Congress has said that he can do something like what he wants to do under specific circumstances, but somehow we are not permitted to inquire into the circumstances.
So now the Court has essentially said that our prior understanding of irreparable harm is now null and void, replaced by a new understanding that says that presidents -- at least this president -- cannot be disappointed or frustrated even for a minute. That is bad. What could be worse?
This is my moment to confess error, in this case an erroneous prediction. Earlier this year, after Trump issued his emergency order to divert duly-appropriated funds to build a few miles of his pointless wall, the House and Senate voted to stop him. Trump then vetoed that bill. What next?
Republicans hold more than one-third of the seats in the House, and the number of Republican defectors on the first vote in the Senate was not enough to combine with the Democrats to come up with two-thirds there, either. (This is, by the way, why I have argued that the supposed finding-of-spines moment by Mitt Romney and others was gratuitous theater. They knew they were not truly stopping Trump.)
My prediction at that point was that the lower courts would block Trump's misappropriation of funds, but the Supreme hyper-conservatives would ride to the rescue. I was right about that, of course, but so was everyone else. How was I wrong? I argued (in public speeches, and maybe also in print, but if so, I am unable to find it) that the Court would declare that the issue was a political question and thus not open for Supreme Court intervention.
How would that have worked? The majority could say, rightly, that the political process has played out as written. How? Exactly as I described above: Congress appropriated funds (and a previous Congress wrote the law allowing the president to declare emergencies), Trump acted, Congress disapproved of that action, Trump vetoed the disapproval, and Congress did not have the votes to override. Surely, a motivated majority could have said that the political process has given us an outcome, and the president won.
That, of course, would have allowed the Court to avoid the entire question of whether Trump is violating the separation of powers by spending funds in direct contravention of Congress's express orders. The hyper-conservatives in robes could simply have declared that Congress itself had the power to stop it but chose not to exercise that power.
Other than reaching the same outcome -- Trump wastes money on a wall that is not even arguably responsive to the crisis that his own policies have immeasurably worsened -- how would a ruling relying on the Political Question Doctrine have differed from a ruling relying on a redefinition of the concept of irreparable injury?
From the standpoint of those who disagree with the outcome but would want at least to minimize the damage to legal doctrine going forward, it is possible to make an argument that both routes were minimalist. On the political question route, the Court could have been seen to say that the particularities of Congress's process for disapproving of misappropriating funds are not a general free ticket to presidential overreach. On the irreparable injury route, one could say that the majority might have mangled the law of injunctions but nothing more.
Maybe, but both routes also leave gaping holes for Trump to exploit in the future. If he wants simply to rewrite the budget, he can declare anything and everything an emergency, and under the Court's order, stopping him is unthinkable because it will harm him. If the Court's order had been based on the political question reasoning, future cases could be dismissed simply by saying that Congress had the power to pass laws and override vetoes, making anything Trump does constitutional because Congress did not stop him.
On the minimalist view, I think that the larger damage would have come from a political question ruling, because that would have been much broader than the actual ruling on irreparable harm. But because I now view the Court's hyper-conservatives as having thrown off any pretense of political independence (with Chief Justice Roberts's heresy on the Census case being a surprising counterexample), it ultimately does not matter how they give Trump what he wants. They will get there, logic and precedent notwithstanding.
When Anthony Kennedy was still on the bench, and especially in his final term, the Supreme Court issued many horrible decisions. Citizens United: Shelby County v. Holder; the anti-union case in 2018 (Janus); the Ohio voter purge case (Husted v. Randolph Institute); Masterpiece Cakeshop. The list is a long one.
One of the Court's worst decisions in decades, of course, was the Muslim Travel Ban case (Trump v. Hawai'i), which is widely and rightly considered to be this generation's Karematsu -- a description so apt that John Roberts felt compelled to include in his opinion a doth-protest-too-much section that essentially said: "We're not issuing a new Korematsu. See, we're explicitly admitting decades later that Korematsu itself was a bad decision. How dare you say that our new case is like that other case ... that we have now disavowed?!"
What made the Muslim Travel Ban case egregious as a legal matter was its tortured excuses for ignoring the boatloads of evidence of bias on the part of Donald Trump and his Administration, an example of judicial rationalization that is still breathtaking in its dishonesty. Another very recent decision also exposes the majority's willingness to engage in judicial duplicity.
My question here is whether the particular kind of duplicity that the Court's conservatives use when reaching these decisions matters. I think it ultimately does not, but it is at least worth exploring the question.
If "judicial activism" has an objective meaning (rather than simply being an opportunity for conservatives to call a decision "something that I disagree with that liberals like"), it is when a court clearly decides the outcome of a case notwithstanding the law and then twists the law to reach that outcome. Legal realists will argue that there is a lot of gray area -- perhaps that it is all shades of gray -- because nearly every case can be seen as a reverse-engineered outcome, and we do not know with certainty what went through the jurists' minds as they made their decisions. Even so, the Muslim Travel Ban case stands out as an act of rank judicial rationalization for a preferred political outcome.
After a relatively low-volume term that ended last month -- a term nonetheless blighted by the post-Kennedy hyper-conservative majority's distressing decision to allow partisan gerrymandering, clearly to the net benefit of Republicans -- the Court has now issued a ruling allowing the Trump Administration to divert funds to build "the Wall," that is, the border barrier between the U.S. and Mexico that is Trump's obsession.
Over this past weekend, Professor Dorf published a column describing the Court's order in Trump v. Sierra Club as a decision not formally on the merits but that truly is ultimately a ruling on the merits. The Court's majority decided that Trump can divert funds that had been appropriated for other purposes, but as a formal matter, the order merely said that the Administration could proceed with its plans while the case is being litigated -- potentially to be told to stop later, if it loses on the merits.
Even if that is a terrible decision -- and Justice Breyer's dissent makes it clear not only that it is a terrible decision but that the majority simply refused to agree to a compromise that would have prevented the supposedly "irreparable injury" that Trump would have suffered without actually allowing the funds to be spent before the merits had been decided -- the question is whether taking a different path to that terrible decision would have been better, worse, or simply unimportant.
[Correction: Technically, the Court's order in this case was not about the prior authorization for diverting funds for a declared national emergency but about the authorization in the spending bill itself for diversion for "unforeseen military requirements." I acknowledge and regret the error, but because the difference does not change my analysis here, I am leaving the text as originally written.]
Professor Dorf concludes his column by saying that "the majority did not think that giving the government the ability to finalize its contracts but not begin wall construction would sufficiently address the government's need for emergency relief. And why not? Perhaps because five justices of the Supreme Court think that the emergency justifying extraordinary relief from the Supreme Court is an urgent need to build Trump's wall."
That is, the Court's hyper-conservatives are not being conservative in any recognizable intellectual or even intelligible sense (no known version of judicial or political conservatism being on display here). They are simply saying that irreparable harm is whatever Trump's lawyers say it is -- which in this case means Trump not getting what he wants. That is a truly strange way to twist the doctrine, because it means that Trump must always get his way while a case is pending.
Among other things, this completely trashes the idea of preservation of resources. After all, if Trump loses on the merits -- and again, Dorf's point seems to be (or at least I am willing to say) that the five conservatives must have already decided that Trump will not lose on the merits -- then money will have been spent and resources wasted (in irreversible ways) on something that never should have happened in the first place.
Moreover, the fundamental issue here is whether the separation of powers means anything in a world in which Trump has decided simply to seize and distort emergency powers. The Court's conservatives are saying that the world's biggest non-emergency -- a situation on the border that has been unsettled for decades and that Congress has repeatedly decided not to address in the way that Trump wants it to -- is an emergency because Trump says it is important to him.
This mirrors the Court's non-reasoning in the Muslim Travel Ban case, where Kennedy/Thomas/Roberts/Alito/Gorsuch agreed that we need not -- indeed, that the Court cannot -- look at reality in deciding whether the executive is abusing the powers that the legislature conferred upon him. All that apparently matters is that the executive wants to do it, and Congress has said that he can do something like what he wants to do under specific circumstances, but somehow we are not permitted to inquire into the circumstances.
So now the Court has essentially said that our prior understanding of irreparable harm is now null and void, replaced by a new understanding that says that presidents -- at least this president -- cannot be disappointed or frustrated even for a minute. That is bad. What could be worse?
This is my moment to confess error, in this case an erroneous prediction. Earlier this year, after Trump issued his emergency order to divert duly-appropriated funds to build a few miles of his pointless wall, the House and Senate voted to stop him. Trump then vetoed that bill. What next?
Republicans hold more than one-third of the seats in the House, and the number of Republican defectors on the first vote in the Senate was not enough to combine with the Democrats to come up with two-thirds there, either. (This is, by the way, why I have argued that the supposed finding-of-spines moment by Mitt Romney and others was gratuitous theater. They knew they were not truly stopping Trump.)
My prediction at that point was that the lower courts would block Trump's misappropriation of funds, but the Supreme hyper-conservatives would ride to the rescue. I was right about that, of course, but so was everyone else. How was I wrong? I argued (in public speeches, and maybe also in print, but if so, I am unable to find it) that the Court would declare that the issue was a political question and thus not open for Supreme Court intervention.
How would that have worked? The majority could say, rightly, that the political process has played out as written. How? Exactly as I described above: Congress appropriated funds (and a previous Congress wrote the law allowing the president to declare emergencies), Trump acted, Congress disapproved of that action, Trump vetoed the disapproval, and Congress did not have the votes to override. Surely, a motivated majority could have said that the political process has given us an outcome, and the president won.
That, of course, would have allowed the Court to avoid the entire question of whether Trump is violating the separation of powers by spending funds in direct contravention of Congress's express orders. The hyper-conservatives in robes could simply have declared that Congress itself had the power to stop it but chose not to exercise that power.
Other than reaching the same outcome -- Trump wastes money on a wall that is not even arguably responsive to the crisis that his own policies have immeasurably worsened -- how would a ruling relying on the Political Question Doctrine have differed from a ruling relying on a redefinition of the concept of irreparable injury?
From the standpoint of those who disagree with the outcome but would want at least to minimize the damage to legal doctrine going forward, it is possible to make an argument that both routes were minimalist. On the political question route, the Court could have been seen to say that the particularities of Congress's process for disapproving of misappropriating funds are not a general free ticket to presidential overreach. On the irreparable injury route, one could say that the majority might have mangled the law of injunctions but nothing more.
Maybe, but both routes also leave gaping holes for Trump to exploit in the future. If he wants simply to rewrite the budget, he can declare anything and everything an emergency, and under the Court's order, stopping him is unthinkable because it will harm him. If the Court's order had been based on the political question reasoning, future cases could be dismissed simply by saying that Congress had the power to pass laws and override vetoes, making anything Trump does constitutional because Congress did not stop him.
On the minimalist view, I think that the larger damage would have come from a political question ruling, because that would have been much broader than the actual ruling on irreparable harm. But because I now view the Court's hyper-conservatives as having thrown off any pretense of political independence (with Chief Justice Roberts's heresy on the Census case being a surprising counterexample), it ultimately does not matter how they give Trump what he wants. They will get there, logic and precedent notwithstanding.