Supreme Court Justice Anthony Kennedy (Kevin Lamarque/Reuters)

Justice Kennedy may have other ideas.

As our Monday editorial details, there is every reason to believe that the eventual ruling of the Ninth Circuit federal appeals court will control the outcome of litigation over President Trump’s temporary travel ban on both aliens from seven countries and refugees. A three-judge panel of the Ninth Circuit is considering the Justice Department’s appeal of a temporary restraining order issued by Seattle federal district judge James Robart, which suspends the ban. The panel has announced that it will hear oral argument on Tuesday.


The Ninth Circuit’s determination is likely to be dispositive because there are currently only eight justices on the Supreme Court, a situation that will obtain until the vacancy created by Justice Scalia’s death is filled. It is assumed that the four left-wing justices on the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) would vote to uphold Judge Robart’s lawless restraining order. I believe that is an entirely reasonable assumption because, as I’ve been arguing for years now, the Supreme Court operates more like an unelected super-legislature than a judicial tribunal. Like Robart, the politically “progressive” justices make decisions based on the desired policy result, not the law.

This proclivity has led to an assumption, oft repeated in the commentariat, that the Supreme Court would deadlock 4–4 on the case, meaning that the decision of the lower court, the Ninth Circuit in this instance, would stand. I suspect that, for conservatives and other defenders of the executive order, that might be overly optimistic. Notwithstanding that the law is clearly on Trump’s side, there is a very good chance that the swing justice, Anthony Kennedy, would vote with the left-wing bloc – meaning that the administration could lose 5–3 in the High Court.


As anyone who was measuring the Atlanta Falcons for Super Bowl rings late in the third quarter will tell you, the prognostication game is an uncertain business. Still, you may get my drift if you think about the legal theory supporting Trump’s order, and then consider Kennedy’s majority opinion in favor of constitutional habeas corpus rights for alien enemy combatants in the controversial 2008 case of Boumediene v. Bush.

The main principle underlying Trump’s executive order is that the political branches of the federal government have plenary authority over border security, particularly as it pertains to aliens who could pose a threat. There is little or no legitimate role for the courts. The Supreme Court has long recognized that “it is undoubtedly within the power of the Federal Government to exclude aliens from the country,” and that even American citizens and their belongings may be searched without judicial warrants due to the sovereign imperative of “national self-protection.” (I’m quoting the Court’s 1973 decision in Almeida-Sanchez v. United States, which cites many of the Court’s relevant precedents.)



To summarize: Since (a) aliens have no enforceable judicial right to enter the U.S.; (b) the president has constitutional authority to act against potential foreign threats to national security; and (c) Congress, which has indisputable power to prescribe the requirements for alien entry into the country, has delegated to the president sweeping power to deny the entry of aliens whose presence – in the president’s judgment – would be detrimental to the U.S., that should be the end of the matter. The matter is outside judicial responsibility and there is therefore nothing for the courts legitimately to review.

But is that how Justice Kennedy would see it?


Boumediene involved alien enemy combatants who were captured and held outside the United States, at the Guantanamo Bay naval base that is technically sovereign Cuban territory. Unlike the aliens affected by Trump’s order, the vast majority of whom presumably mean the United States no harm (and many of whom had been given legal permission to enter prior to the order), the Boumediene aliens had no contacts with our country except to make war on us.

They also had no constitutional right to judicial review of the commander-in-chief’s wartime decision to detain them as enemy combatants. There was Supreme Court precedent explaining how detrimental to national security it would be to empower the enemy to use judicial proceedings to second-guess and undermine wartime command decisions. And Congress, just two years earlier, had — at the Court’s request — enacted a law (the Military Commissions Act of 2006) that addressed the detention of combatants. In that law, Congress, using its constitutional authority to control the jurisdiction of the federal courts, directed them not to entertain any habeas claims by the alien combatants (although it did grant a narrower path to judicial review).


Justice Kennedy nevertheless joined the Court’s left-wing bloc to rule against the Bush administration and Congress’s clear statute. (The bloc then included Justices Souter and Stevens, later replaced by Justices Sotomayor and Kagan.) Kennedy wrote the majority opinion and, as I observed at the time, turned on its head the venerable doctrine of separation of powers that undergirds our constitutional system.

Previously, separation of powers meant we are a democracy, not a judicial oligarchy. That is, if a particular subject matter is committed by the Constitution to the political branches of government that are accountable to the people, then the judiciary – which is not similarly accountable – must respect this limitation on its authority and refrain from intruding. Kennedy, however, held that “the exercise of [executive] powers is vindicated, not eroded, when confirmed by the Judicial Branch.” By his lights, there is no subject insulated from judicial review: It is the judiciary, not the Constitution, that ultimately determines the legitimacy of government action.

Justice Kennedy is hostile to limitations on judicial power.

Kennedy, moreover, further rationalized the judicial usurpation of presidential and congressional prerogatives on the ground that the case involved imprisoning “a person.” This eviscerated any distinction between Americans and non-Americans. A court’s jurisdiction over a person presupposes that the person in question has a legal right to judicial review. Alien enemy combatants captured and held outside the United States in wartime had no such right . . . at least until Kennedy and the left-wing bloc wove one out of whole cloth.

Regardless of how deeply rooted is the constitutional principle that border security is a plenary power of the political branches, I am not convinced that Justice Kennedy will be much impressed. He is hostile to limitations on judicial power and skeptical, to say the least, that the distinction between citizens and aliens is of much consequence.

I am completely confident that the Trump administration should prevail as a matter of law. But I am not much more confident that it would prevail in the Supreme Court than that it will in the Ninth Circuit.