How Appealing Human Rights

SCOTUS, Justice Kennedy & President Trump’s “Animus” Problem

Celeste Fremon
Written by Celeste Fremon

The Justice and the Word

President Donald Trump and a great many news pundits seem to view the U.S. Supreme Court as the president’s best chance for getting his travel ban executive order up and running, and out of the hands of the pesky lower courts that have thus far stopped the EO-2—as it is called in some quarters—in its tracks.

Predicting how the highest court in the nation will rule on any matter is a dicey activity at best. Yet, there are several factors that could derail the outcome that the president and his lawyers most desire.

Two of most significant of those potential obstacles might arguably be:

1. the person Justice Anthony Kennedy, and…
2. the word “animus.


Going to the Supremes

First let’s recap what has led us to this point: On Thursday, May 25, in an 11-3 vote, the 4th Circuit Court of Appeals upheld a block on the president’s travel ban by Maryland U.S. District Judge Theodore D. Chuang.

(On May 15, the 9th Circuit Court of Appeals heard arguments on another temporary stay of the travel ban by Hawaiian U.S. District Judge Derrick Watson, but the 9th has yet to rule.)

The 4th circuit concluded in its 205-page ruling that, the March 6 Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States a redo of Mr. Trump’s earlier, harsher EO—“…drips with religious intolerance, animus, and discrimination.”

Last Friday, the day after the ruling, acting Solicitor General Jeffrey B. Wall took the matter to the U.S. Supreme Court, where the government asked for an expedited hearing on the matter. If granted, SCOTUS would hear arguments on the case next fall, likely in October, with a ruling perhaps in December 2017, or January 2018.

(The government would also like SCOTUS to temporarily allow the executive order to go into effect now, while whatever is going to occur in the court plays itself out.)

It takes four votes to grant the petition seeking review, which is known technically as a petition for certiorari. It is extremely difficult to imagine that the petition for the court to hear the government’s appeal would not be granted.

Perhaps thinking of that probable SCOTUS hearing to come, over this past weekend, the president began expressing his own newest thoughts on his executive order, 140 characters at a time. “We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!” he tweeted on Saturday night at approximately 7 p.m.

Then on Monday morning at around 6:25 a.m., Mr. Trump got up and tweeted again: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!”

Then few minutes later, he went further, “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”

And, a few minutes later still, the president let loose another volley: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!”


The Legal Magic of Animus

In matters like EO-2, which are almost certainly destined to be appealed to a higher court, judges writing lower court rulings often tailor their language to specific members of the next court up the line, or in federal cases, to members of the U.S. Supreme Court.

Since a case like this one could easily split the Supremes along conservative/liberal lines, that could mean that, once again, Anthony Kennedy will be the swing vote. The tie breaker.

Thus it is not surprising that, in much of its lengthy ruling, the 4th Circuit seemed to be speaking directly to Justice Kennedy, even specifically citing at least one of his most relevant rulings.

But perhaps most importantly, the court focused intensely on a single word: animus, which appears 22 times in the 4th circuit’s ruling.

It is a word that is aimed directly at Justice Kennedy—without ever needing to mention his name.

In the legal world, animus means an illegitimate prejudice. But, more than that, according to Harvard Law School constitutional law scholar, Noah Feldman, animus is not only the key to the various lower court decisions freezing the ban. It is also, along with dignity, “one of the master concepts in swing voter Justice Anthony Kennedy’s jurisprudence.”

In constitutional law, Feldman writes in an interesting column for Bloomberg, “animus began its path to contemporary importance in Kennedy’s 1996 landmark gay-rights opinion in Romer v. Evans. Kennedy wanted to use the equal protection clause of the Constitution strike down an amendment to the Colorado state constitution adopted by referendum. On its face, the amendment said the state’s legislature and cities couldn’t adopt anti-discrimination laws to protect gay people.”

Before the Romer decision, the most common way to strike down laws that violated equal protection of some group or class, was to say basically that the law unduly burdened a class of people who were “discrete and insular minority.”

But Anthony Kennedy didn’t want to do that. So, as Feldman explains it, “Kennedy got creative. He wrote that the Colorado amendment’s ‘sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.’”

Given the presence of animus, Kennedy concluded, the amendment lacked “a rational relationship to legitimate state interests.” It was therefore unconstitutional.

So how does all of this relate to the EO-2 travel ban?

Well, if Justice Kennedy views the order temporarily blocking immigration from six predominantly Muslim countries as an exercise of anti-Muslim animus, according to Feldman’s logic, in the case of a 4-4 split in the court, the ban is probably toast. “It would be difficult for the justice to downplay Trump’s prejudice,” Feldman argues, “without betraying his own legacy.”

The 4th Circuit has littered its ruling with plenty of what it clearly regarded as animus-related ammunition to support that view.

To choose a random example, in one footnote, the 4th circuit wrote, “…there is simply too much evidence that EO-2 was motivated by religious animus for it to survive any measure of constitutional review.”


Bad Faith Rising

In addition to “animus,” the 4th circuit also spends a lot of time on the idea of “bad faith,” a concept that allows the court to look beyond the the stated purpose of the executive order to what might underlie it, which is where we find the purported animus. (There’s more to the principle than what I wrote, but that’s the bottom line.)

For instance, after much discussion of legal precedent governing the good faith/bad faith concept, the 4th circuit concluded, “…because Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we find it appropriate to apply our longstanding Establishment Clause doctrine.”

As the lower courts have done, the 4th circuit looked at statements made by the president and those around him as valid ways to determine if such legal concepts as “animus” and “bad faith” apply to the matter of the travel ban. They concluded that the concepts did apply.

“We need not probe anyone’s heart of hearts to discover the purpose of EO-2,” the 4th circuit wrote, “for President Trump and his aides have explained it on numerous occasions and in no uncertain terms.”

And, just to make sure nobody missed the point, the court cited Kennedy, several times, to explain the validity of their perspective.

“Justice Kennedy,” the court wrote, “explained that where a plaintiff makes ‘an affirmative showing of bad faith’ that is ‘plausibly alleged with sufficient particularity,’ courts may ‘look behind’ the challenged action to assess its ‘facially legitimate’ justification.”

And in looking behind the curtain, so to speak, the 4th Circuit decided that EO-2 violated the Establishment Clause of the First Amendment of the Constitution:

Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.

These are complicated legal concepts that we are only able to touch on briefly here and, obviously, very much open to interpretation.

What will happen when the travel ban actually reaches the Supreme Court could surprise everyone.

But, if Feldman is right, and animus and Justice Kennedy are the key to the outcome at SCOTUS, President Trump’s latest tweets about his EO-2 are likely not helping his cause.


Post Script

If you have further interest in the legal concept of animus, do go over and read Feldman’s full story. Also, whether you agree with the 4th circuit or not, even a ten minute skim through the court’s ruling makes for interesting reading.

And, in case you’re curious, the Fourth Circuit is made up of eight judges appointed by Republican presidents, and eleven judges appointed by Democratic presidents.

18 Comments

  • When it’s all said and done, the Alt Right will then call SCOTUS “Leftist Liberals”. Trump’s legacy will be defined in 140 characters or less. His travel ban debacle is one of many smokescreens for the Russian connection. Unbelievable!

      • @ D.O.R. The truth heals and hurts at the same time. Obviously it hurts you. Much more to come, so clench your teeth and put your seat belt on.

  • The hypocrisy of the creatures the occupy the courts knows no bounds. They don’t seem to care about any president unilaterally attacking anywhere in the world militarily, but a travel ban goes too far. It’s called the “Invade the world invite the world” strategy. Now they want to give U.S. civil rights to non citizens at the expense of future U.S. citizen victims.
    P.S. I don’t understand all this anti Russian hysteria, they seem to hate us a lot less than our own left does.

    • Both extreme elements of the right and left make a habitual practice of expressing their disdain for the other side. Both accuse the other side of hating America, and both are wrong. It’s a weak argument, that whole hatred thing. I’m concerned about any country engaging in any of the actions the Russians appeared to have been involved in. I’m also concerned about the conspicuous lack of curiosity about Trump’s business dealings with the Russians and the Chinese. All US banks denied Trump any credit, he couldn’t even apply to be one of our own DST’s because of his bad credit. So where did he get his credit from?

      • LATBG, sounds like your suffering from”Trump derangement syndrome”. All that Deep state and media propaganda has you confused. If I were to judge Trump by his enemies , I’d make him president for life.

        • I don’t think you quite grasp the implications of what Trump has done on the international stage. Your hatred towards all things left of Genghis Khan prevents you from seeing the big picture for what it is.

  • OTOH, just a few days ago the U.S. Supreme Court overturned a Ninth Circuit decision, and the Supreme Court decision was unanimous; no Conservative/Liberal idealogical split at all.

    The Supreme Court decision is County of Los Angeles v. Mendez, and it can be Googled for full particulars; lots to read there.

    This is the LASD shooting up in the Lancaster area.

    The Supreme Court will probably find that there is indeed “prejudice” but it’s not
    illegitimate.

    Remember, the travel ban applies only to Muslim countries where terrorism is

    1. Uncontrolled–Somalia.
    2. An instrument of official government policy–Iran.

  • @cognistator “applies only to Muslim countries where terrorisn is”? Not quite. Unless you stopped the clock well after 9/11, ignoring Saudi Arabian homegrown perpetrators, or are ignoring the multitude of terror attacks since within countries, like ours, where perpetrators have been citizens.
    Trump’s travel ban rationale is a joke, a thin veil disguising his often stated intent to ban all Muslims from our country. If, as stated, it was to be temporary while the vetting process was strengthened even more than it is now, then he has had plenty of time within his original planned window to “fix” that already rigororous and lengthy process, but there is no sign he has done or attempted that. Instead, he tweets, and tweets and tweets. It seems that’s all his base requires, joyfully equating judges and courts as anti-American, continuing to distract from the issue at hand: is the ban constitutional? Or, is it merely selective overreach based entirely on one’s religion.

    • Constitution:

      My memory of the President’s stated intent to ban all Muslims from our country is that particular ban would last only until we could fully understand and then deal with the Muslim mindset of “Death to the Infidel,” a mindset that can be Googled; I personally see nothing wrong with such a ban.

      This is the mindset that motivated

      1. The London attacks. You will recall a van ran down pedestrians on the London bridge then, leaving a trail of dead and injured in its wake, went to a crowded food-mart at one end of the bridge. There, three occupants of the van jumped out with “big knives”–eyewitness description–and began slitting throats. With each slit throat there was a cry of “This is for Allah”!

      2. The San Bernardino episode. Remember, this was done by a County employee at a Christmas party, and this was done to the suspect’s cubicle mates and their families whom he had known for at least five years.

      At a Christmas party.

      3. The Ft. Hood shooting. This was done by an Army officer with the rank of “O-4,” meaning he was an Officer on his Fourth promotion, trusted by the soldiers he shot & killed for being “Infidels.”

      4. And on and on…

      The President is right: that mindset has got to be figured out, and then dealt with.

      And I have no problem with banning Muslims until that is done.

      “Infidel,” by the way, means Muslim non-believer.

      • All Terrorists are not Muslims and/ or foreigners.The biggest true example would be Timothy McVeigh. Go figure.

  • Boy, I guess we have some Trumpian conspiracy kooks on this site. I understand Major Kong, and how he longs for the Supreme Court that gave us Dread Scott and Plessy v Ferguson. This one with Mexicans (really Puerto Rican, but they lump them all together), liberal jews and women has sent the country to hell in a hand basket. Before you lose your cool, Messers Kong and DOR, please remember that the the guys with turbans might be Sikhs and not Muslims. I heard your kind has confused them before.

    • Hey Cf that comment is better than your usual rant on leaded gas,dog’s asses, and a liberal use of the “n” word. Pro tip: lay off using the “n” word ,I know you think it makes you sound cool, but it makes you look alike a pseudo intellectual knucklehead, it will burn you in the end.

  • The Justices of the 4th animus toward Trump over whelmed their judgement of law and legal precedent, resulting in their attempted usurpation of president power.

    If this horrible precedent is left standing, it would open a path to the destruction of the rule of law, by concentrating power in un-elected judges to second guess any decision by any legislative body, or executive officer, or even other judges because of inferred bias of perceived animus.

    The U.S. Constitution “commits the power to make foreign policy, including the decision to permit or forbid entry into the United States, to the President and Congress.” — The constitution does NOT give this power to judges to second guess the President because of the judge’s animus toward the president.

    However in the case of judges, Oliver Wendell Homes said bias and animus are issues which disqualifies a judge. — Any justice…shall disqualify herself in any proceeding in which her impartiality might reasonably be questioned. She shall also disqualify herself…where she has a personal bias or prejudice concerning a party.”

    Obviously in the case of Supreme Court Justice Ginsberg, her animus of President Trump is plain for all to see, and completely disqualifies her from hearing any case regarding his administration.

    “I can’t imagine what the country would be with Donald Trump as our president. For the country, it could be four years. For the court, it could be –I don’t even want to contemplate that.”

    “Now it’s time for us to move to New Zealand.”

    “He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. How has he gotten away with not turning over his tax returns?”

  • I am amazed at how hard folks will argue for the “rights” of either people who entered this country illegally or who are not citizens at all. I can understand spending time, resources and the like on US citizens, which this country still falls short on, but to argue and afford someone who is not a citizen the same legal standing is ridiculous. I’m sure the framers of the Constitution did not anticipate the state of world affairs when they drafted it either.

    Just as everyone is comfortable in putting locks on their doors and fences around their yard to protect their property, so should the Federal Government, by extension, be able to do so to protect its boarders and afford its citizens the right to life, liberty and the pursuit of happiness.

    Some folks are so quick to point out civil rights cases and US history that relates to minorities or other groups that were subjected to inequalities and injustices. In all those cases however, those groups were either US citizens who either entered the country by legal means or in the case of most African Americans, were forced immigrants.

  • Conspiracy, African Americans are “forced immigrants?” Did you take the same Black Studies course as Ben Carson? You probably think the Japanese were “forced campers” during WWII. And, do not be so surprised that there are some people “that argue for the rights of other people.” It may hard to believe, but there people who care about people who may not be white. Now you have something to tell your ma’ and pa’.

    Cognistator, you say, the “ban would last only until we could fully understand and then deal with the Muslim mindset of “Death to the Infidel,” a mindset that can be Googled.” Are you serious? Until “we” can fully understand “the Muslim mindset?” I’ve been trying to understand the Redneck mindset for a couple of decades and yet to understand it. How long have you been trying to understand the Muslim mindset? And, you can’t really think our Orange commander in chief can understand anything? He may be redneck royalty, but the man, you must admit, is an idiot. maybe little Ivanka can help him “architect” a new travel bad. And, it “can be google?” Surely, you jest. Is that your standard, whether something can be googled? No wonder the rest of the world is kicking our ass academically. Really, googled?

    PokeyTree – “to second guess any decision by any legislative body, or executive officer, or even other judges….” Judges should not decide whether a decision by the legislative body or executive officer is constitutional? That is their sole purpose. You must be related to Cognistator. I am sure between you two you will be able to figure out the “Muslim minset” that Cognistator is trying to decipher.

  • How’s Europe doing these days? Rolling out the carpet to Muslims has been a good thing for Germany, France, Belgium, Switzerland and England? two thirds of Muslims in England said they wouldn’t tell authorities if they were aware of a terror plot…two thirds. We have people who live separately here don’t we. The Amish, some White and even Blacks that separate from society, Hasidic Jews but by and large except for the very random act they don’t hunt us down, or our kids and obliterate us. This is the mission of way to many Muslims, just how it is. They even war with each other over it, Shia and Sunni. They hate us for the things we do and for what we don’t do and it will never change. Their crazies will never stop N.O.T.E.V.E.R. What’s the over/under on dead kids or anyone else that everyone’s ok with to show we love diversity?

  • CF…you are the most racist, bigoted and hate mongering “liberal thinker” around. Your rants are always filled with hate speech, name calling and of course a huge amount of elitist BS. Such a spoiled little evil child. Your kind are the type that think they can rationalize everything away and believe they know what’s best. You probably think welfare and social programs that perpetuate dependence are a good thing.

    If you represent the “leftist mindset” that looks out for other people instead of the citizens of the USA (which you probably are not), God save this country as it will surely continue to circle down the drain and go to to sh*t.

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