The Supreme Court already agreed to hear many significant cases in the fall 2017 term. Among these is one of the most important tests of executive power the Court has ever heard. This case, consolidated as Trump. v. International Refugee Assistance Project (IRAP), involves the administration’s travel ban – specifically Executive Order No. 13780 – Protecting the Nation From Foreign Terrorist Entry Into the United States.
The Court does not hear many executive power cases and this is by design. In the 1962 case Baker v. Carr the Court specified that it would not decide political questions where there is or was “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Over the past decade or so under Chief Justice Roberts the Court has decided less than a handful of cases that hinge on interpretations of Executive (Article II) power. Of these cases, several including NLRB v. Canning focused on the President’s appointment power. In Canning the Court decided that the President overreached in an attempt to make recess appointments to the NLRB during Senate pro forma sessions.
In one of the other cases in this set, Zivtofsky v. Kerry, the Court defined the exclusive domain of executive power:
“This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports.”
In this small subset of these cases the Court has heard in recent years including the two mentioned above, the justices have decided for and against the President. Important for comparisons to the current IRAP case, the issues in the Court’s recent Article II jurisprudence did not share much substance with the current dispute.
One might instead look to other cases that examine similar rights to those involve in IRAP. The question then becomes how to define the essential dimensions of the IRAP case in order to explore similar themes in other, already decided cases. One case type – that dealing with the rights and treatment of non-citizens – sticks out above the rest. The Court looked at states’ power in this domain in Arizona v. United States when it held Arizona’s S.B. 1070 had several unconstitutional provisions including provision 4 which, “authorized warrantless arrests of aliens believed to be removable from the United States.”
Arizona is but one example of a case where the Court has held in favor of broad rights for citizens and non-citizens in the face of arguments predicated on public safety. The remainder of this post looks at the Court’s other recent decisions in this realm to better understand the justices’ likely positions in this area, which justices have less clearly defined views, and how both parties may attempt to persuade the justices to decide in their favor. The findings suggest that the respondent parties arguing against the government’s position have a much stronger chance of succeeding.
Prior to analyzing the justices’ decisions in similar cases, there are a few more general dimensions of interest that begin to paint a picture of a Court that could well hold against the government’s position in this case. A starting point is the view from 10,000 feet. At a very broad level, the IRAP case deals with individuals’ civil liberties in areas of civil rights and due process by examining the rights afforded to individuals attempting to travel into this country. In recent years the Court has ruled much more ideologically liberally in such cases than in the rest of its decision making. Viewing the government’s position as conservative on the ideological spectrum, the Supreme Court Database provides the underlying data, coded to compare the Court’s left-right preferences in these areas from the 2005 through 2015 terms.
While most the Court’s decisions in these two general areas of law skewed liberally, the Court ruled conservatively in an almost equal proportion of all other cases (two percent of these cases could not be clearly characterized on this ideological spectrum). With an established propensity to rule in an ideologically liberal fashion in such cases, a second general question is how the justices have ruled in cases argued by the incumbent administration’s attorneys.
With President Trump only in office for a portion of the Court’s most recent term, this determination is still rather rudimentary. While the Obama administration filed many of the cert petitions in the government’s cases for the term, the current Justice Department could choose to position itself differently in cases than its predecessor as it did in the transgender bathroom case Gloucester v. G.G.
The next figure looks at the justices’ votes in cases argued by the current administration’s attorneys where the United States or Department of Justice was a merits party. With the caveat that the current administration did not have the level of involvement in these cases as it will have in cases the Court hears in the forthcoming term, the justices’ positions are still generally discernible.
The Court ruled unanimously against the government’s position in most of the seven cases. Six of the seven majority decisions were against the government’s position. In the one case where the Court ruled for the government, Justices Kagan and Ginsburg, two of the more liberal justices on the court, dissented. That case, Turner v. U.S., dealt with instances of the government’s undisclosed impeachment evidence in criminal cases and how this may weigh on juries’ verdicts.
These first two dimensions explored above, general ideological and votes on cases argued by current administration attorneys, suggest preliminarily that the justices may be willing to invalidate the executive order in this case. The justices’ decisions in related cases provide more credence to this argument.
Decided cases that may help convey the justices’ views in this instance clarified rights of individuals where the extent of Constitutional protection was in question. This set of cases could be easily extended or curtailed but most importantly the justices’ votes and views in the cases, were only examined once the cases were already selected. The primary selection criteria were cases decide after the year 2000 that described the rights of immigrants or immigration in the case syllabus. Cases that were poor matches were then removed. The time period allows us to look at some of the longer sitting justices’ voting behavior prior to the Roberts Court.
The following figure presents a broad outline of the Court’s determinations in these cases breaking the cases down by year, party of the incumbent president, and whether the Court sided with or against the government.
Under this lay of the land, the Court ruled eighteen times against the government and ten times in the government’s favor. This includes eleven times or 61% of the time against the government and seven times for the government under President Obama and against the government’s position in seven of ten cases or 70% of the time under the combination of Presidents Trump and George W. Bush.
The next figure looks at the individual justices’ frequencies of voting for the government or for the individuals in these rights related cases. The percentages show how often the justices voted against the government with those who voted more often for the government’s position towards the bottom of the graph.
There is a fairly clear ideological separation between the justices on this graph showing that the more conservative justices voted along with the government’s positions more frequently than did the liberal justices. Even some of the more conservative justices including Kennedy and Roberts voted against the government’s positions more than 50% of the time.
This graph not only shows the justices’ voting propensities in this type of case, but also shows the justices who might waiver in their votes in the upcoming case. Although the justices’ votes are by no means set in stone, if we assume that the justices that voted against the government more often, particularly Kagan, Sotomayor, Breyer, and Ginsburg and the justices that voted more often in favor of the government’s positions – Alito and Thomas – are not likely to shift from these positions, we are left with Justices Kennedy, Roberts, and Gorsuch.
As Justice Gorsuch was new to the Court this term he only voted in Maslenjak in the above cases where the justices unanimously held that “to secure a conviction, the federal government must establish that the defendant’s illegal act played a role in her acquisition of citizenship.” Although based on his short tenure on the Court, there is support for the position that Justice Gorsuch will vote in the government’s favor in IRAP, given Gorsuch’s lack of a decision making history in cases with robust Constitutional dimensions, his vote could also be viewed as less predefined (and thus open to persuasion) in this case than those of several of the other justices.
Now to Justices Roberts and Kennedy. Even though they both voted against the government in the majority of instances described above, they shifted back and forth on this point across time. The following two figures look at their vote share against the government in the same cases examined above on a yearly/term basis.
Justice Roberts voted primarily along with the government’s position in five terms shown in the figure, against the government in five terms, and voted evenly on both sides in two terms. Justice Kennedy voted primarily against the government’s position in six of the terms, primarily for the government in four, and split evenly in two terms. Justices Roberts and Kennedy, for instance, were in the majority (Justice Kennedy concurred in the judgment) along with Justices Scalia, Thomas, and Alito in Kerry v. Din. There the Court held that an explanation was not required for a denial of a visa when the exclusion was predicated on the broad basis of exclusions for terrorism-related grounds.
Justices Roberts and Kennedy, however, appear to hold broader views of individuals’ civil rights now compared to in the past. One example of this is with the Morales-Santana majority opinion signed by both justices which cites Obergefell for the proposition:
“new insights and societal understandings can reveal unjustified inequality… that once passed unnoticed and unchallenged.”
Recent past behavior suggests that Justice Roberts might be more open to a narrow reading of such rights than Justice Kennedy, but that both may be open to arguments from the government. Some of the closest voting splits among the justices this past term dealt with individuals’ rights where Justice Kennedy ruled in both directions and Justice Roberts voted predominately against those rights. All of the decisions last term with a five or four justice majority, split along such ideological lines and Justice Kennedy was the swing vote in all of the five justice majorities. These cases mainly dealt with defendants’ rights in criminal trials, however, and so are not as closely relatable to the IRAP case. These decisions do, however, indicate that Justice Roberts and Kennedy may be more open to a narrow reading of rights than Justices Sotomayor, Ginsburg, Kagan, and Breyer.
While Justices Kennedy, Roberts, and Gorsuch may have less determined views on how they will vote in IRAP, the available data suggests the Court will have a 6-3 majority against the Constitutionality of the Executive Order with Justices Thomas, Alito, and Gorsuch in dissent and Justices Kennedy, Roberts, Sotomayor, Kagan, Ginsburg, and Breyer in the majority. Indeed in the case grant for IRAP, Justices Thomas, Alito, and Gorsuch were the three dissenting votes who argued that the entire injunction against the travel ban should have been stayed pending the Court’s resolution in the case.
On Twitter: @AdamSFeldman