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Associate Justice Brett Kavanaugh takes the oath of office Oct. 8, 2018, during a ceremonial swearing-in event in the East Room of the White House in Washington. (Bloomberg photo: Andrew Harrer)
Associate Justice Brett Kavanaugh takes the oath of office Oct. 8, 2018, during a ceremonial swearing-in event in the East Room of the White House in Washington. (Bloomberg photo: Andrew Harrer)

Kavanaugh isn’t ready to give Trump what he wants

By Noah Feldman
Bloomberg Opinion

In two separate but similar cases this week, the Supreme Court has handed President Donald Trump a setback on immigration and a victory on transgender troops. In particular, the court’s actions show that its newest member, Justice Brett Kavanaugh, may not be prepared to give the president what he wants.

Before reading the tea leaves, however, it’s important to understand what the court actually did.

It chose to leave the Deferred Action for Childhood Arrivals program in place for now, meaning that it won’t hear a case about it before October 2019, and probably a good deal later. This decision — or really non-decision — is a setback for Trump, who tried to rescind DACA, which protects hundreds of thousands of undocumented immigrants from being deported. His plan was blocked by a federal district court.

Meanwhile, the court ruled 5-4 that his ban on transgender people serving in the military can go into effect while the issue is being litigated.

To make sense of the arcane complexity of the court’s actions, understand that both Trump’s DACA rollback and his transgender ban came in the form of executive orders. In both cases, a federal district court blocked the order from going into effect. The rulings were based on a legal standard that considers both the presence of irreparable harm and the likelihood of ultimate legal success by the party seeking the injunction.

Naturally, the Trump administration didn’t take either ruling lying down. It appealed both to the appellate courts to reverse the temporary stays — and lost both times. So it appealed directly to the Supreme Court. In both cases, it had two requests: that the court to take the case (which requires four votes), and that the court to reverse the stay issued by the district court (which takes five votes).

In the DACA case, the Supreme Court refused to take the case, and also declined to lift the stay issued by the lower court. In the transgender case, the justices also refused to hear the case before it was fully litigated. But they overturned the district judge and ruled that the ban could go into effect while the litigation proceeds.

Before speculating about what the justices are really thinking, it’s worth considering whether there is a principled, consistent explanation.

With respect to the harm, the only practical difference between the two situations is one of scale — and that shouldn’t matter, legally speaking. In the DACA case, allowing the administration to rescind the policy before the court ruled on its right to do so would undoubtedly cause significant, irreparable harm to many people. So there was good reason for the justices to leave the lower-court block in place while they consider the issue.

Banning transgender people from the military would irreparably harm many people, too — specifically, transgender people now serving in the military, who would presumably be discharged. That may not be as bad as being deported, perhaps, but it’s still meaningful harm. There are fewer transgender people in the military than there are DACA-qualified people in the U.S. But again, what should matter is not the scale of harm but the harm to individuals.

That raises the second issue the court was bound to consider: the likelihood of success on the merits. Presumably, the five conservative justices who allowed the transgender ban to be restored are foreshadowing their votes when the case comes to the court. If all five of them are going to vote that the ban is constitutional, then it is credible for them to hold that the ban should stay in place, because in their view, the party challenging the ban isn’t likely to succeed. The four liberals naturally disagreed.

But if the five conservatives are essentially saying they’re likely to allow the transgender ban, why aren’t they saying the same thing about Trump’s DACA rescission?

Here’s where the details start to matter. It is almost impossible to imagine that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch are unsure about whether Trump can rescind DACA, which Barack Obama put in place by executive order. Logically, they should have been prepared to vote to allow DACA to be rescinded while the case is litigated.

If Chief Justice John Roberts and Kavanaugh had agreed, that would have meant five votes to overturn the lower court’s block. Yet those two didn’t vote that way — and the logical inference is that they weren’t prepared to.

Another detail: Had Kavanaugh but not Roberts wanted to hear the case immediately, his vote would have been sufficient in conjunction with the three hardline conservatives, since it only takes four votes for the justices to agree to hear a case. The reasonable conclusion, therefore, is that Kavanaugh didn’t want to rush the DACA case — and that he didn’t want to allow Trump’s DACA rescission to take effect right away.

Now for the speculation. This vote doesn’t necessarily foreshadow how Kavanaugh will ultimately vote. It’s entirely possible that he simply wanted to stick close to Roberts. And Roberts surely must want the Supreme Court to stay away from DACA right now, as its fate is a hotly contested issue in the political negotiations over reopening the government.

But it’s significant that Kavanaugh seems to be with Roberts in his desire to keep the court from getting too involved in politics. With respect to DACA, the court’s newest member is insisting on a relatively moderate stance.

All of which means that, for now at least, Donald Trump has good reason to be annoyed with Brett Kavanaugh.

 

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

 

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