The striking thing about Wednesday’s argument in Trump v. Hawaii, the Muslim ban case, is how ordinary it was.
Members of the Court quickly sorted into familiar ideological camps. Chief Justice John Roberts, Justice Samuel Alito, and Neil Gorsuch all seemed eager to uphold the ban (Justice Clarence Thomas will almost certainly join them, but he was characteristically silent). The four liberals were largely skeptical of the ban — although Justice Stephen Breyer appeared to feel around for a compromise that could uphold the ban while expanding the use of waivers and exemptions. Justice Anthony Kennedy was somewhere in the middle.
But there was little sense of alarm from the bench as a whole, and no sense of great alarm from Justice Kennedy. Indeed, for much of the oral argument, Kennedy seemed to view Donald Trump’s decision to ban nationals from many Muslim nations from the United States — a decision that Trump reached after campaigning for president on a platform of anti-Muslim animus — with all of the passion he ordinarily brings to cases asking whether the Employee Retirement Income Security Act preempts a state employee benefits law.
If you’ve been hoping that the courts will provide a check to Trump’s illiberalism, now would be a good time to find another hero.
After Wednesday’s argument, it is far from clear how the Court will rule in this case — although if you had to put money on it, bet on a 5-4 decision upholding the ban — but it is perfectly clear that a majority of the Court isn’t especially alarmed by Trump, his presidency, or the threat he presents to the rule of law.
Solicitor General Noel Francisco, who argued the case on behalf of Trump, did his best to paint Trump’s Muslim ban as a very ordinary decision, vetted by cabinet officials and handed down as a perfectly normal way of protecting national security. Trump’s decision to ban residents of several majority Muslim nations from entering the United States is no different from “what President Carter did with respect to Iran” or “what President Reagan did with respect to Cuba.”
Of course, neither Carter nor Reagan campaigned on a platform of hostility to Iranian or Cuban nationals. Nor did they openly brag about their plans to use a national security-based pretext to justify a Muslim ban.
Francisco’s efforts to normalize this case quickly ran into headwinds from Justices Sonia Sotomayor and Elena Kagan. Kagan proposed a hypothetical where a future president campaigns on anti-Semitism, and then instructs his subordinates to find a seemingly legal way to ban Israelis from entering the United States. Kagan specified that this hypothetical centered on “an out-of-the-box kind of president.”
Sotomayor asked the same question in a more pointed way — what if the president said to his cabinet, “I want to keep out Jews; find a way”?
In the most hopeful sign for opponents of the ban, Justice Kennedy also jumped into this round of questioning. After Francisco claimed that Trump’s anti-Muslim campaign statements were not relevant and should not be considered in evaluating this policy, Kennedy asked about a candidate for mayor who makes “vituperative” statements on the campaign trail and then acts upon those statements “on day two” of his time in office. Is the Court really supposed to pretend that those statements don’t speak to this mayor’s intentions?
Yet, while the Court’s liberals largely saw this as a case about animus, its right flank clearly bought Trump’s claim that it is a national security case.
Shortly after Neal Katyal, the former acting solicitor general challenging the ban, took the podium, Chief Justice Roberts asked about a more limited ban. What if intelligence agencies came to the president with credible evidence that 20 Syrian nationals planned a terrorist attack in the United States for tomorrow? Could Trump issue a one day ban on travel from Syria? What if the ban lasted a week? What if they ban began a month from now and then extended for a week?
Roberts’ point was that courts cannot easily draw the line between a ban that is warranted and one that should be forbidden, and the price of erring too far in favor of civil liberties could be catastrophic.
Justice Samuel Alito, meanwhile, played the role of casual authoritarian. After Katyal argued that Congress enacted specific legislation describing what the president may do if he determines that particular foreign nationals present a national security threat — and that this legislation does not permit the Muslim ban — Alito asked what should happen if such a threat cannot be dealt with through measures lawfully authorized by Congress.
In a particularly ominous sign for the ban’s opponents, Kennedy appeared to share Alito’s concern — suggesting that the decision of how the United States should react to a perceived national security threat should not be left up to the judiciary.
At the end of the day, this case is likely to be decided not based on how the justices understand the law, but based on what they think of Donald Trump.
If you think of Trump as a bumbling goon who does not listen carefully to his advisers and who acts largely based on his own id, then the Muslim ban must go. Whatever deference that courts ordinarily owe to presidents in the national security context can’t be applied when that president brags openly about his plans to flout the Constitution and target a particular religious group.
But if you think of Trump as a perfectly ordinary president, trying his best to protect the nation after consulting with knowledgeable advisers, then of course this ban should be upheld. Courts do not have access to the intelligence network that presidents are supposed to rely on, and they second-guess a president who pays genuine heed to good intelligence at the nation’s peril.
Four members of the Court are almost certainly in the former camp, while four others are almost certainly in the later. If you merely read the transcript of this argument, you might get the impression that Kennedy is torn between the two sides — he did, after all, ask tough questions to both advocates.
But the stunning thing about Kennedy’s behavior on the bench was how calm and measured he appeared. He showed none of the rage that animated his questions about a Colorado civil rights commissioner who noted that “freedom of religion” has often been used to justify discrimination. Nor did he display the vitriol that drove his Rush Limbaugh-like rant against public sector unions that allegedly advocate for “massive government.”
At Wednesday’s oral argument, Kennedy looked like an ordinary judge, hearing an ordinary case against an ordinary president. That bodes poorly for this challenge.
One potential wild card is Justice Breyer, who spent much of the argument grilling Francisco about whether the Muslim ban offers especially deserving foreign nationals the opportunity to obtain a waiver permitting them to come to the United States. What of Syrian university professors who wish to attend an academic conference at Berkeley or Harvard? Or students denied visas because of their nation of origin? Or businesses that seek to hire an especially qualified candidate from Somalia? What of a 10-year-old child with cerebral palsy who was reportedly denied a waiver by the Trump administration?
Breyer has brokered compromises with Kennedy in the past — most notably in a case where Kennedy cast an unexpected vote not to kill affirmative action in university admissions. It is possible that he will do the same here, offering his vote (and perhaps that of Justice Kagan) to the conservatives in return for more robust exceptions to the Muslim ban, preventing the outcome of this case from being a total victory for the Trump administration.
But liberals who hoped that the Court shares the same sense of alarm that they feel about President Trump — not to mention the kind of liberals who write essays referring to the judiciary as “the Last Hope of the Left” — are almost certain to be disappointed.