The day before Justice Anthony Kennedy retired, he joined a 5-4 Supreme Court majority in upholding President Trump’s (Muslim) travel ban. The executive order in question banned entry from six predominantly Muslim countries and added North Korea and Venezuela as window dressing. The Court found the ban supported by the record in the case and untainted by President Trump’s serial anti-Muslim demagoguery.
I think the decision legally unsustainable; Justice Kennedy’s vote mystifying.
Many have called out the Court in two respects: First, the majority employed the extremely deferential standard of review courts use in economic regulation cases. In contrast, for the past 80 years, when a law has affected individual rights of minorities — such as religious freedom — the Court has engaged in “strict scrutiny.” A heavy burden lies with the government to justify its restrictions. Justice Stephen Breyer’s dissent exposed that the majority bought — hook, line and sinker — the untenable notion that the Trump administration engaged in a serious, though secret, 17-page study and came up with a system of guidelines, exemptions and waivers that we have yet to see.
Second, Justice Sonia Sotomayor’s ringing dissent justifiably and severely criticized the majority for turning a blind eye to the bigotry that lies behind the executive order. The dissent compared this to other cases the Court had handed down just days before. Justice Sotomayor listed the “Colorado Cake Case,” in which the Court overturned sanctions against a baker who refused to sell a wedding cake to a same-sex couple. Justice Kennedy himself leveraged stray comments during an administrative hearing into bias by the state. The Court noted the failure of anyone to repudiate the two comments. The majority here, however, conveniently ignored that the president never repudiated his steady stream of invective.
Critics have overlooked a more glaring instance of the majority’s double standard. The Colorado case involved adjudication. When it comes to judges — and even citizen-jurors — the law requires a higher standard of neutrality. Yet the Court used the same reasoning in a case involving public safety. Justice Kennedy held to account the City Council of Riviera Beach, Florida for possibly illegitimate intent behind an arrest, whose validity the individual involved admitted. Ironically, in Lozman v. Riviera Beach, as in the Muslim ban, the challenger invoked the First Amendment.
Lozman, who lived in a houseboat, objected to the city’s redevelopment of the waterfront. Embittered, he sued the city unsuccessfully multiple times. He misbehaved at a public meeting and the council ordered him arrested. The state’s attorney found probable cause but declined to prosecute. Lozman sued for false arrest; the jury found against him. Despite the unquestioned legitimacy of the grounds for arrest, the Supreme Court sent the case back for further proceedings.
The Court required judges to look behind the facially valid act. Justice Kennedy justified the result on the grounds that the allegations implicated the First Amendment’s right to petition, which is “speech that is high in the hierarchy of First Amendment values.” In addition, Lozman had no other redress if, in fact, the council tried to intimate him into silence.
The Muslims seeking entry into this country deserve at least the same solicitude. The right to be free of religious discrimination ranks at least as “high in the hierarchy of First Amendment values” as the right to petition. For Lozman to win, the Court required findings of 1) an actual policy aimed at him; and 2) that the bias played any role in his arrest. Under these standards, Hawaii should have won. The president himself admitted that he has a policy to ban Muslims from the United States. Considering the sham study, the non-existent guidelines and the hypothetical exemptions and waivers, absent anti-Muslim bias, the ban would not have happened.
Justice Kennedy’s position on Trump baffles me. Joining the majority “in full,” he wrote, “The First Amendment prohibits the establishment of religion and promises the free exercise of religion…It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
Nobody writes that about a city council. He held a council accountable, but did nothing about the president.
For all his conservatism, Justice Kennedy exhibited compassion for outcasts. One law professor suspects the justice could not empathize with Muslims. Perhaps, at age 81, he has had enough of the fight.