Via Jack Goldsmith for Lawfare
Many are debating the significance of today’s Per Curiam Supreme Court opinion that granted the government’s petitions for certiorari and its stay applications in part. Did the Court signal that it would uphold most elements of the decisions below, as some argued? Did it signal the opposite—that it would reverse most elements of the appellate court rulings? Will the case be moot by the fall? I think it is very hard to predict how the Court will decide the case next Term, except perhaps to say that if it reaches the merits, the claims of foreign nationals who lack a relevant relationship with a person or entity in the United States aren’t looking so good.
But the implications for the merits are not what are most important about the decision. What is most important is that the Court issued a Per Curiam opinion on the most contested issue of the Trump presidency with a sober, reasonable legal analysis written in a temperate tone, followed by a three-Justice partial dissent that was also sober and reasonable in substance and temperate in tone.
I detest much of the president’s norm-defying behavior and have been critical of it. But I worry at least as much about norms related to our governance that have been breached and diminished as a result of, or in response to, Trumpism. Trump has taken everyone (well, many of us) down a bit toward his screaming, exaggerating, temperature-raising, disrespectful, uncharitable, un-self-aware, norm-defying level—journalists, bloggers, Executive branch bureaucrats, citizens, and courts. (This was happening to some extent before Trump; he may be as much an effect as a cause. But the norm-defiance on all sides has accelerated under his presidency.) I have tried very hard to resist this tendency but I do not exclude myself from this indictment.
I don’t have time to elaborate the claim that Trump has brought us all down to some degree, and will here focus on courts. It seems to me that the norm of judicial detachment has taken a pretty big blow in the lower court Immigration Executive Order decisions. Obviously courts have always been political. In important cases they are not neutral. The deference courts give the Executive has always been contextual. But it is important to appear neutral, and to appear to follow precedents, and to appear to pay presidents proper deference and respect. To date, and in response to Trump’s unpresidential behavior, courts assessing the EOs have sometimes seemed to abandon these principles, to act openly and willfully beyond precedent, and indeed not even to bother to try to tie the scope of their injunctions against the exercise of a core presidential power to the underlying legal analysis. The judges have written opinions that in parts seem to support the inference that they conceive themselves as part of the #resistance.
I don’t know if I am right about this last point. But I do know that a lot of people—including a lot of smart, informed, sensible people—see it that way. They see the lower courts opinions
(and the lawsuits and institutions that fueled them)* as norm-defying behavior—not norm-defiance as a legitimate response to Trump’s overreaching, but rather norm-defiance as part of an illegitimate rearguard action by those who failed to accept the legitimacy of Trump’s election, a rearguard action with many other feints by many other institutions. Some who hold this view go further and blame this rearguard action for Trump’s behavior. They think the elite assault by courts and other institutions on Trump has provoked him into many of his-norm-defying actions. Sometimes they go further and say that this assault justifies Trump’s actions.
I don’t go nearly this far. While Trump has clearly been provoked by others’ norm-defying behavior into some of his norm-defying behavior, he has been his own worst enemy from the outset of his presidency and has (in my view) dished out much more than he has taken in. Also, I have no doubt that Trump “started it” in the immigration context with his sometimes-uncivil rhetoric on the campaign trail, his irresponsibly overbroad and poorly crafted initial Order, and his tweet attack on courts.
But “who started it” is beside the point, and not just because two wrongs don’t make a right. The point is that Trumpism and (some) elements of anti-Trumpism have been engaged in downward spiral of Tit-For-Tat norm violations since the outset of his presidency. Whichever side is more and less justified, the effect of this downward spiral—for civil discourse, and for the legitimacy of our institutions—has been awful. It has been especially bad, I think, for the integrity of courts. (Some institutions—notably, the elite media—have suffered even more. But that is another story.)
This is the background against which to view today’s Supreme Court decision. Who knows what the Court will do next Term. But today the Court seemed to say: We must stop this behavior. In its last pronouncement of the Term, six Justices in a Per Curiam opinion that signaled unity and solidarity kept much of the lower court injunctions in place while at the same time ruling that the lower courts had gone too far in their untidy injunctions and their failure to take national security prerogatives seriously, and perhaps in other ways. The three partial dissenters agreed with this assessment but would have gone further and stayed the injunctions in full. Both opinions were sober, detached, and respectful in tone. Both hewed closely to traditional legal materials and doctrines. In reasoning and tenor, both opinions were markedly different from the lower court opinions. Even if Trump is disrespectful of the presidency and other institutions, the nine Justices seemed to be saying, the Tit-For-Tat must stop, at least as far as courts are concerned. The judiciary has to be better than that—for the judiciary, and for the nation.
Maybe I am wrong about this. Maybe the Court was not being high-minded. Perhaps this is just a tactical decision by the six Justices in the Per Curiam to allow a limited version of an already-limited version of the EO to take effect with knowledge that the cases may well moot out by the time they have to decide. In other words, this might just be sophisticated bottom-covering that allows the Court to avoid the hard issues that the lower courts couldn’t easily avoid.
Perhaps. But if the Court wanted to cover its bottom, it could have not ruled today on the petitions and not taken any stand on the injunctions or some of the lower court analysis. Instead, the Court took the case, commented on it, narrowed the lower court injunctions, and did so with substance and style that send a signal. I don’t think this signal tells us much if anything about what will happen on the merits. I also don’t believe it rules out examining the President’s actions very closely, even, perhaps, by denying him a normal presumption of regularity in light of his actions. The Court seems simply to be trying to turn down the temperature, and to interject a better model of behavior into our corroded institutions and discourteous civil discourse—or at least in courts. Thank you, Justices, if that is what you were doing, even in part.
* Sam Moyn //platform.twitter.com/widgets.js” target=”_blank” rel=”nofollow noopener”>interprets this parenthetical to mean that it is “norm defying to file suit to check the legal propriety of exec action or legislative enactment” and that the passage “put plaintiffs lawyers (and clinics etc.) in the same boat with others.” I was not describing my views and I am not sure that the views I am describing are quite what Sam says, so to avoid confusion I will delete the parenthetical.