Genuine statesmanship, complete with institutional respect and restraint, has become vanishingly rare in America in the overwrought Age of Trump.
But on occasion at least, American judges are wisely resisting the many current provocations to answer reckless overreach with more reckless overreach. Some jurists (though not all) seem to recognize that calmly, diligently upholding legal and political boundaries and norms, not becoming accomplices in discarding them wholesale, is ultimately the soundest strategy to constrain a president who in every sense lacks normal boundaries.
A few weeks ago I saluted a trio of retired, liberal-leaning Minnesota Supreme Court judges for reaching across the ideological divide to endorse President Donald Trump’s nomination of their conservative former colleague David Stras for a federal appeals court seat. In doing what might have been considered rather ordinary in more ordinary times, these judges reconfirmed faith in the benefits of respectful disagreement for an era that seldom seems to believe in it anymore.
More recently and more important, on June 26, the U.S. Supreme Court, in an unsigned “per curiam” decision of the entire court, surprised and nonplused many observers by partly upholding Trump’s radioactively controversial “travel ban” until the court can fully consider its constitutionality in October.
That complex and nuanced decision was an underappreciated act of prudence and judicial restraint — and of shrewd statecraft — that deserves more praise than it’s gotten, or at least more understanding.
In one rather minimalist decision — actually ordering little tangible change in the status quo — the court managed 1) to assert several important principles of law and constitutional order that were being ignored; 2) to show proper respect for the separate powers of both the presidency and Congress; and yet 3) to avoid fully repudiating lower courts that had been provoked into less restrained rulings.
And the ruling’s architects did all this in an essentially unified unanimous judgment that gave the country clarity, but without requiring the court’s more liberal justices to explicitly join the opinion, or dissent from it, by name.
The subtlety of this achievement may explain some of the hesitant and confused response.
The president’s attempt to suspend entry to the U.S. for residents of six Muslim-majority countries has been in the center ring of the Trump administration circus from the beginning. An absurd initial executive order, which blocked entry, without so much as a hearing, even for those with established legal rights to admittance, was easily struck down by lower federal courts.
After some inevitable Trumpian huffing and puffing, the administration issued a second, more limited and plausible order. But several lower federal courts struck that down as well, using strong language and adventurous legal reasoning. The judges found religious “animus” at the heart of Trump’s order, based mainly on Trump’s campaign rhetoric, and invalidated his asserted “national security” measure on those grounds.
After more presidential Twitter tirades, syndicated columnist Noah Feldman seemed to speak for many in the anti-Trump elite in declaring the travel ban as good as dead. A Harvard law professor whose insightful legal analysis often appears on these pages, Feldman confidently predicted that Trump was going to lose at the Supreme Court, the only question being whether his repudiation would be unanimous.
After the court’s recent decision, Feldman again spoke for many when he admitted it now appears the case “may turn out to be closer than I … imagined” — while also seeking to minimize the significance of the court’s ruling. It was issued, Feldman speculated, because the justices, “especially Chief Justice John Roberts and Justice Anthony Kennedy, didn’t want the court’s decision to be read as a partisan rejection of the Trump administration, the way the lower court opinions often [were].”
Well, yes, it does seem likely that a desire to position the court as principled, not ideological, was at work. And a noble motive it is.
It also seems likely (though one speculates here) that it was to orchestrate a unified court decision that Roberts and Kennedy — well-established as the center-right swing votes on the court — worked to craft a curious partial lifting of the lower courts’ injunction blocking enforcement of Trump’s ban — a limited “victory” for Trump (or, more precisely, for the presidency) that the court’s liberals could stomach.
The high court held that the travel ban can go into effect, but only with respect to foreign nationals from the designated countries who have no “bona fide” connection with an American family, school, business, etc.
Three conservative justices — Clarence Thomas, Samuel Alito and the newly minted Neil Gorsuch — complained in a concurrence that this new, ad hoc distinction among would-be immigrants will be a mess to administer. No doubt that’s true — but it’s a mess that apparently gave America a clean, unified message from the nation’s highest court.
It also allowed the court, while mostly upholding, at least for now, the lower courts’ block on the travel ban, to simultaneously declare several fundamental legal principles those lower courts had too casually swept aside.
First, Congress, in the nation’s immigration laws, has long granted presidents extensive discretion to restrict immigration as they deem necessary to protect national security. Such a legislative grant of executive power, especially in the security field, is to be treated with some respect, the court made clear. Even, it seems, if the executive is Donald Trump.
And second, foreigners have no fundamental right to enter the United States, the court noted — only those rights of entry American law grants them.
Above all, the court demonstrated in this decision something too many average Americans — as well as media commentators — sometimes forget. The role of courts is not to pass a final judgment on the wisdom, goodness or practicality of the policies elected officials choose. It is only, and critically, to define whether the laws and Constitution give elected officials the proper power to implement their choices — be they good or bad choices in the judges’ view.
It’s by focusing on that mission, with restraint as well as courage, that courts will best be able to protect vital democratic boundaries.
D.J. Tice is at Doug.Tice@startribune.com.