By Noah Feldman
The blockbuster case of Trump v. Hawaii may not be over. On his way out the door, Justice Anthony Kennedy buried a nugget in his concurring opinion that allows the challengers to go back to the district court and demand a trial on whether President Donald Trump’s travel ban was motivated by anti-religious animus.
Kennedy’s invitation sheds some light on the retiring justice’s character. There is no guarantee of success before the lower courts, but there is a better chance than I thought when I first read the decision. Certainly, the lawyers who brought the case should give it a try.
Kennedy’s suggestion that the case against Trump’s executive order could still be litigated was hiding in plain sight. The order in its current form indefinitely blocks more than 150 million people from seven countries, five predominantly Muslim, from entering the U.S. As I noted in the column I wrote immediately upon reading the decision, after joining the majority opinion removing the lower court’s block on the travel ban, Kennedy said the lower court “could still consider whether it was proper to look for religious animus ‘in light of the substantial deference’ due to the president.”
And I explained that “because the case was before the Supreme Court as the result of a preliminary injunction, not after a trial, it is still theoretically possible for the lower courts to hold a trial to consider further evidence of presidential bias.”
Yet I disparaged the likelihood of the plaintiffs’ success. “The problem,” I wrote, “is that evidence of Trump’s bias has already been presented — and found insufficient by the justices. Without some significant new piece of evidence, it’s hard to see how a lower court could find that the order was actually motivated by anti-Muslim animus.”
Enter professor Owen Fiss, one of the giants of constitutional law and civil procedure in the second half of the 20th century, and my teacher and mentor. Fiss cut his teeth litigating civil rights cases for the Department of Justice in the 1960s. Among other things, he’s the author of a definitive work on injunctions. At 80, he hasn’t lost a step.
Fiss called me with a distinctive point that he thought the commentators were ignoring: The plaintiffs should go back to court and seek a trial on Trump’s bias.
When I objected that success seemed unlikely absent new evidence, he had two answers. First, he pointed out, the standard of proof of bias that the plaintiffs would have to meet could actually be lower at trial than in their action seeking a preliminary injunction. To convince a court to rule for you before it has all the facts — which is what happens in a motion for a preliminary injunction — you may need more proof than if you are making your claim on the basis of the facts developed at trial.
Second, Fiss said, the plaintiffs could seek discovery to uncover new evidence of Trump’s thinking, including, potentially, drafts of the executive order or memos about it. There would no doubt be a fight about whether Trump could withhold such records by saying they are protected by executive privilege. But it’s conceivable that the lower courts might make the president disclose some of them. Who knows what they might reveal?
Of course, even if the case was fully litigated in the lower courts, and if they found the executive order unconstitutional, the Supreme Court — without Kennedy, and presumably with a more conservative successor — would likely overrule the lower courts. But that’s less important than the principle, which is that impermissible bias could be demonstrated and found to exist.
What’s more, there might be concrete benefits from discovery and a full trial even without ultimate victory: The waiver system could be activated, the ban would be less likely to be expanded, and the administration might even let some countries out from under it.
With characteristic generosity of spirit, Fiss told me that he thinks Kennedy’s concurrence showed that the justice “agonized” about the travel ban decision, and was trying in his way to preserve basic rights.
That’s not what I thought on first reading. I wrote then that “Kennedy was trying to fashion a fig leaf for himself. But his efforts failed, and the nakedness of his selling out his own jurisprudence of animus should be clear to all.” However, maybe Fiss is right — maybe Kennedy really was trying to enable the case to go forward.
Fiss also argued, with similar generosity, that Justice Stephen Breyer’s dissent, joined by Justice Elena Kagan, was meant to win over Kennedy to assure that the case would be able to proceed. Breyer’s opinion urged attention to the system of exemptions that the executive order allowed, and said that if the exemptions were used, it would make the travel ban seem less bias-motivated. If they were not used, that would support an inference of bias.
Fiss thinks Breyer’s opinion is meant as guidance to the lower courts in continuing litigation. If that’s so, then perhaps I was too hasty in writing that “this wasn’t the right case for Breyer and Kagan to be quite so pragmatic.”
Of course, a lower court could reject this interpretation of Kennedy’s concurrence and conclude that Chief Justice John Roberts’s opinion for the court forecloses further consideration of the case. But the states and private individuals who challenged the ban have nothing to lose by finding out. There is a plausible argument for going to trial. Important principles are at stake. Why not try?