Thursday, March 16, 2017

Keeping an Eye on Justice Kennedy Continued

Taking “Judicial Notice”  
A few weeks ago, I wrote a blog post recommending that students keep their eye on Justice Anthony M. Kennedy in the ongoing legal battles over the Trump Administration’s travel ban.  Following the judicial invalidation of the initial Executive Order (Order No. 13769, issued January 27, 2017), upheld by a 3-0 ruling of the Ninth Circuit Court of Appeals, the Trump Administration opted to make revisions.  A revised version (No. 13780) was issued on March 6, 2017.  

On Wednesday, March 15, the revised ban was blocked by temporary restraining orders issued by the United States Federal District Courts in Hawaii and Maryland.  (A challenge by the State of Washington is still pending).  

Judge Derrick K. Watson, of the Federal District Court in Honolulu, found that procedural and other revisions did not remedy the central defects as previously identified by the courts.  In so ruling, the Federal Court took judicial notice of the public comments of Donald Trump, both as a presidential candidate and in his official capacity as President, as well as the commentary and explanations offered by White House staff and surrogates:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim (CV. NO. 17-00050 DKW-KSC). 

U.S. Federal District Judge Derrick K. Watson
Photo Credit: Associated Press

In his immediate response to the decisions on his revised ban, President Trump has again vowed to appeal. Whatever the Circuit Courts decide, it seems likely that this time the matter will work its way all the way to the United States Supreme Court. 

What Will Kennedy Likely Notice?

The ruling by Judge Watson frames the legal issues in terms of religious (First Amendment) rights.  The federal government has already indicated a two-fold argument in response: 1) that the law is facially neutral and that the district court overstepped by inquiring into the law’s underlying motivations and 2) that the order is necessarily and legitimately related to the compelling purpose of protecting national security.

Although the Supreme Court has been generally deferential to executive claims of necessity that are based upon national security interests, as I pointed out in my previous blog post on this topic, Justice Kennedy has been particularly emphatic that national security need not and must not come at the cost of constitutional liberty. 

There are two other cases (one from 1992 and from just a few weeks ago) which potentially shed light on what might guide Kennedy’s consideration of the Trump Administration’s arguments in support of its travel ban.

U.S. Supreme Court Justice, Anthony M. Kennedy
Original photo credit:

Writing for the Court in, Church of Lukumi Babalu Aye v. Hialeah (508 U.S. 520) in 1992, Justice Kennedy invalidated a facially neutral ordinance prohibiting (ostensibly on public health grounds) the slaughtering of animals within city limits.  Kennedy rejected the claim of a facially neutral law, finding instead that the ordinance had been motivated by religious animus toward local practioners of the Santeria religion. The lack of neutrality, he found, could be determined from “both direct and circumstantial evidence”  including public and private commentary by local lawmakers in debating and discussing the ban. Kennedy’s opinion ruled that the law was neither neutral, nor generally applicable to all, nor sufficiently narrowly tailored to meet the  legitimate governmental concerns.  Kennedy stressed that the First Amendment “commits government itself to religious tolerance, and upon even slight suspicion that proposals…stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and the rights it secures.”

More recently, in a 5-3 ruling, Kennedy reiterated that racial bias has no legitimate place in the administration of justice.  His ruling in Pena-Rodriguez v. Colorado thus authorized the reconsideration of a jury verdict where it was subsequently revealed that a juror had made verbal statements in deliberations that reflected racial bias against the criminal defendant.  It was, Kennedy held, appropriate for a trial judges to consider such statements in retroactively determining whether the defendant’s Sixth Amendment right to a fair trial had been violated. Kennedy wrote:

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.

Implementing the “Lessons of History”

So what are these lessons of history that mark the evolution of a “maturing legal system”? 

If (or when) the travel ban reaches the Supreme Court, it is not likely to escape judicial notice (Kennedy’s or others') that we recently observed the 75th anniversary of Korematsu v. United States (323 U.S. 214) in which the Supreme Court upheld President Franklin Roosevelt’s executive order interring Japanese Americans during World War II.  It is an unavoidable backdrop against which all claims of executive necessity are to be forever measured.  The 5-person majority in Korematsu did not question the executive branch’s motives nor did they challenge its determination that such sweeping measures were legitimately necessary.  As Justice Felix Frankfurter (in)famously noted in his concurrence, war powers and national security matters are constitutionally vested to the political branches and not to the courts. Korematus thus stands in the law books as a judicial validation of broad executive power in times of a national emergency or crisis.

But the insights of that ruling for the current justices (Kennedy perhaps included) may be drawn from the opinions of the dissenting justices who warned about animus and discrimination under the guise of facially neutral-justifications. Judicial validation of such claims, Justice Robert Jackson warned, are bound to become “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes” (323 U.S. 214, Justice Robert Jackson, dissenting).

It is by no means a given that the conservative Kennedy will accept executive assertions of legitimate national security interests without inquiring into the alleged motivations behind the ban and without full and careful consideration of the competing religious claims raised in the state challenges.  

When Justice Kennedy “errs” in close cases, it is often on the side of libertyBecause the closely divided Court currently stands at 8 members (pending the confirmation of the late Justice Scalia’s replacement), whichever way the Supreme Court tends on the travel ban question, Kennedy’s views will be particularly critical to the outcome.  Kennedy’s romanticized conception of the judicial role, along with his willingness to consider evolving sensibilities, the maturation of the legal system and emergence of newly recognized rights, and a lower court ruling that seems perfectly pitched to Justice Kennedy’s ear – means there is much in the travel ban cases of which Kennedy can and likely will take careful notice himself. 

President Donald Trump displaying his signature on the travel
ban executive order.
Photo Credit: Associated Press 

PSC 305, American Constitutional Law is offered regularly in the Fall Semester. The course covers the evolution, scope, and relative powers of the legislative, executive, and judicial branches and the major constitutional doctrines of separated powers and federalism (federal versus state powers). We cover constitutional law as part of American political development and discuss contemporary constitutional controversies.  

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