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).
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| 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.
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| U.S. Supreme Court Justice, Anthony M. Kennedy Original photo credit: http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg |
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,
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 liberty. Because 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.
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| 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.
