After Kennedy

Considering the Supreme Court minus its swing vote—and plus another Gorsuch.

Kennedy, Trump, and Gorsuch outside the White House
Justice Anthony Kennedy, President Donald Trump, and Neil Gorsuch take part in Gorsuch’s swearing-in ceremony as an associate justice of the Supreme Court in the Rose Garden of the White House on April 10, 2017, in Washington. Mandel Ngan/AFP/Getty Images

On this week’s episode of my podcast, I Have to Ask, I spoke to Quinta Jurecic, the managing editor of the website Lawfare, which focuses on legal affairs, national security, and—more recently—President Trump’s disregard for the rule of law. She previously served as an editorial writer at the Washington Post. Below is an edited transcript of the show. In it, we discuss what Anthony Kennedy’s retirement means for the future of abortion law, what John Roberts’ “travel ban” decision says about the way the conservatives on the court view Trump, and whether a judge’s ruling that border-crossing children must be reunited with their parents is likely to hold up.

You can find links to every episode here; the entire audio interview is below. Please subscribe to I Have to Ask wherever you get your podcasts.

Isaac Chotiner: What is your biggest takeaway from the Kennedy retirement?

Quinta Juresic: Kennedy was the swing vote. He sort of intentionally fashioned himself as the swing vote. And so there are a lot of cases where he might have voted with the more conservative bloc anyway. Bringing in a more conservative justice, perhaps in line with Neil Gorsuch, may not have that much of a practical effect. But there are also a lot of areas in which Kennedy was a little more iconoclastic and did tend to side with the liberal bloc. Personally, as soon as I saw he was retiring, my immediate thought was that I was worried about Roe v. Wade. That there are going to be a lot of test cases coming up if Trump can get a justice confirmed where conservative activists are going to be trying to overturn that right to an abortion.

Assuming Trump’s replacement for Kennedy is more conservative than John Roberts, which, given the list of 25 names that he says he’s going to choose from, seems pretty likely, that would mean that Roberts would be the swing vote. Do we have some sense of where Roberts stands on abortion broadly and Roe v. Wade specifically?

I do think what we’ve seen from Roberts recently is that he is someone who is very conservative but cares a lot about the institutional legitimacy of the court. I think you saw that in his travel ban ruling. It will be very interesting to see how he tries to guide the court forward in an increasingly political atmosphere while the court itself is becoming increasingly politicized.

What about the ban ruling made you think that he cares about the way people view the court?

If you read his opinion, it’s a really interesting piece of writing because it basically says, “Look we know that Trump did this because of animus toward Muslims. There’s an extensive record but we’re not going to consider that here.” And there’s this fascinating little aside where he essentially says most presidents have used their position to speak to the American people on a moral level, but some presidents have not risen up to that standard, which is a pretty obvious shot at Donald Trump. And then he goes on to say: But we have to consider the presidency as a whole rather than just this president, which seems to me to be his way of saying, “Look, we’re not going to be dragged down into the mud of Donald Trump, we’re going to stay on the level of abstractions. And we’re going to take a step back and not incorporate all Trump’s comments.” And so that leaves you with the obvious question of how can you not incorporate Trump’s comments. But I think it does point to Roberts’ level of care in thinking about how institutions interact even if it may lead him to what I certainly would argue is the wrong decision.

What did you make of the fact that Kennedy joined the Roberts decision in that case? If you’d asked me five or 10 years ago, this would be something that I would have been certain Anthony Kennedy would not have voted to uphold.

Yeah. I mean, Kennedy is very big on the First Amendment, he’s very big on religious liberty, and yet he did side with the chief justice here. I’ve seen a lot of commenters note that Kennedy has actually sided with the conservatives more often than usual this term. I did think it was notable that he sided with Roberts and particularly interesting was his two-page concurrence that essentially said, “I recognize that Donald Trump is behaving badly and the question of whether or not he is upholding his oath of office is not for me to judge as a member of the Supreme Court. But you know, by gosh, isn’t it important that he upholds that oath,” which I think a lot of people, including me, kind of read as throwing up his hands in a sense.

It seems like there are a couple different thoughts about how the Justices operate. One is that cases come before them and they determine based on whatever their reading of the law or their ideology is. And the second says that they’re human beings and they’re very political and they change with the political winds. I guess what I was struck by with the travel ban decision was that it felt a little bit like the conservative members were moving the way the Republican Party has moved. You saw a lot of Republican officeholders criticize the Muslim ban when it was first proposed, and then they slowly grow to accept it.

It’s important to keep in mind here that while we’ve all been referring to this as the travel ban case, and I include myself there, this is the third iteration of the travel ban. This is way, way, way watered down from Trump’s initial ban, much less the total and complete ban on Muslims entering the United States that he promised during that campaign. And that was what Roberts really stuck to, was saying look, they went through an interagency process, DHS produced all these documents, we have an administrative record here. And if the Court had ruled on the initial travel ban as a lot of lower courts did, ruling aggressively against it, they wouldn’t have had any of that record to consider. So while you’re right, I think that there is an obvious political charge to how the conservative majority including Neil Gorsuch sided with the president here, I think it’s also true that because they were able to wait it out for so long they were able to let the fires cool a little bit. So it wasn’t quite the confrontation that you might have seen if they had been forced to rule on the initial travel ban. And because of that it meant that they were able to avoid confronting the person of Donald Trump and how he’s a very atypical president.

This week, a U.S. judge in San Diego barred the separation of children and their parents and ordered those who have been separated to be reunited. And so people have been comparing this to the travel ban case because we saw after various iterations of Trump’s ban, various federal judges would make these rulings that covered the whole country. What did you think of the judge’s decision and how likely do you think it is to hold up?

I think the comparisons between the travel ban and the family separations policy are very apt. I mean they’re both policies where the purpose really seems to be cruelty and the rollout is sort of inextricably entwined with just a deep incompetence and level of chaos. And so that and then the back and forth with the courts really do echo the travel ban. I think that my reaction as soon as I saw that ruling last night was sort of saying, you know, here we go again, this is going to be another round of judges ruling aggressively against Trump’s order and the administration is going to go back and forth and they’re going to water it down and we’ll see where we end up. I will say that the initial injunction did strike me as quite aggressive, particularly because of the legal reasoning. If you actually look at the opinion, the reasoning is basically that separating these children from their parents without going through any process violates the parents due process rights under the Fifth Amendment.

The legal term is it “shocks the conscience,” that it’s essentially so outside the norm of government behavior that it cannot be constitutional. Now that’s kind of obviously a bit of a squishy standard. I am not optimistic about how it will hold up on appeal if it goes before a skeptical panel on appeal. But you know, we’ll see. The judges who ruled against the travel ban initially were a lot more aggressive than I would have anticipated.

I think the optimistic case—optimistic if you are not in favor of children being ripped away from their parents—is essentially that this order may help get parents reunited with their children. There are over 2000 kids who are now separate from their parents, and that even if the judge’s ruling is overturned we know that there is a seemingly large political cost to President Trump if he wanted to put this policy in place again, which was not the case with the travel ban.

Yeah, I mean if you look at in a very practical, utilitarian way, I think you’re absolutely right. The judge I think gave 15 days, possibly a little more for children under five to be reunited, and gave a longer period for older children to be reunited. So if that accomplishes its purpose I think that’s great. I mean there is this question of, “Are we seeing a norm in which judges are acting unusually aggressively against this president?” And what does that mean for law as a whole?

Right at the beginning of the presidency, Benjamin Wittes, who’s the editor in chief of Lawfare, and I wrote this piece about what happens when we don’t trust the president’s oath of office. And our argument was that there’s been an unspoken constitutional principle that a lot of the deference that the judiciary gives the executive branch, the leeway that it gives it to pursue policies is based on a trust that the president is upholding his oath of office. And now that Trump seems to not be, and that he sort of seems to not understand what it would mean to, for example, take care that the laws be faithfully executed, we’re now in a circumstance in which we don’t trust the president’s oath of office. One of the effects of that might be that courts are going to develop a jurisprudence that is much less trusting of the president.

How did you feel about that 18 months ago, and how do you feel about it today, and has there been any change one way or the other?

At first I was skeptical of the idea, I think. I along with many people thought that while the courts had ruled aggressively against the first travel ban, and against the second travel ban, once they sort of, you know they went back, they had an actual lawyer read it over, they tied it a little more to the national security rationale they were putting forward, I thought that that would be enough for the courts and it wasn’t. It still got struck down quite aggressively by a sequence of lower court rulings. And at the time my feeling was, I recognize the concerns of the group of people who look at that and say, you know, judges are ruling against Trump just because he’s Trump or judges are going down to Trump’s level.

But it does seem to me that there is a sort of unspoken legal principle at work here. And I would say that now looking back I think that seems right to me. And I feel that even more strongly in the wake of the Supreme Court’s travel ban decision, because what you see when you look at that is frankly Roberts may be right as a matter of technical law. But the moral absurdity of what he wrote, just the sheer vastness of the gap between the sort of abstract legal world that he’s constructed and the real world in which we’re living, where Donald Trump is the president, is so vast that it just seems absurd. I mean it’s not credible. And so it seems to me that there must be a way in which this is incorporated into the law, and if there is not then that’s a sign of the weakness of law as a whole.

You wrote a piece about Trump and the pardon power, and wrote, “He’s only too happy to wield ‘absolute power’ but tends to fold when that power turns out to be less than absolute.” Can you expand upon what you meant by that?

So my point with the pardon power is that Trump wants to be a dictator. And I don’t actually think that that should be that controversial a statement. He’s expressed his admiration for dictators. He talks about wanting to control the Department of Justice, jail his political opponents. But the thing is, while he talks a big game he hasn’t actually done any of those things right. He hasn’t ordered the prosecution of Hillary Clinton. He fired James Comey but then that’s kind of been it. We know that he’s tried to fire Mueller at least twice, and both times he backed off. So it seems to me that he came into office thinking that this was going to be like being the king. And then when he receives pushback he’s kind of surprised and he doesn’t actually push forward and try to muscle through. Like with the travel ban ruling, for example, he went back to the drawing board. He didn’t try to go forward with the initial ban against the courts. The pardon power is this area of his presidency that he’s discovered, where he actually does have absolute power. There’s not anything that anyone can do to keep him from pardoning someone. There’s not an institutional check on it. It’s really just him. And so it’s this sort of pressure release valve for his more dictatorial impulses.

It seems like what you’re saying therefore is that the pardon power is the one thing where there are no checks, and so when there are no checks he can do what he wants, which suggests to me that if other checks, whether they’re congressional, judicial, whatever they might be, don’t push back on him in some way, that he’s more likely to get more dangerous?

I think that’s right. And that’s one of the reasons why I’ve been so disturbed by the failure of Republicans in Congress to push back. We’ve sort of ended up in this strange pattern where Republicans will sort of … You know Trump will threaten to do something like remove Muller for example, Republicans in Congress will say “Oh well we don’t need to do anything about that because he’s not actually going to do it.” Right. And then Trump will take a step further and he’ll motion toward doing it in a more concrete way. You know news reports will surface that he’s been talking about it and then there is this sort of collective shudder from Republican leadership in Congress where they all say “Whoa, whoa, whoa, I mean sure but not that.” Like, you can’t go that far. And then Trump kind of gets burned and he takes a step back and he doesn’t try anything and then the whole cycle begins again. And what worries me is that the more this goes on, the more Trump becomes confident that he might be able to get away with something without pushback, because if the pushback isn’t preemptive there’s nothing from stopping him doing it in the first place. And that’s what I think is really dangerous.