New in Politico Magazine: “Why Courts Shouldn’t Try to Read Trump’s Mind”

March 16th, 2017

Politico Magazine published my new essay, “Why Courts Shouldn’t Try to Read Trump’s Mind.”

Here is the introduction:

More than a decades ago, Justice Souter warned courts that when searching for an impermissible religious purpose, they should resist performing a “judicial psychoanalysis of a drafter’s heart of hearts.”

And yet, in Hawaii and Virginia, the courts have done exactly that—halting President Donald Trump’s executive order on immigration by trying to read his mind. On Wednesday, a federal court in Hawaii concluded that Trump’s revised order violates the First Amendment’s prohibition that the government “shall make no law respecting an establishment of religion.” This opinion basically cribbed from a February decision by a federal court in Virginia halting the president’s initial executive order for the same reason. In both cases (and despite the fact that the administration made significant changes to the policy between them) the judges gleaned from the orders a malicious intent by parsing punditry from Trump and his surrogates, particularly Rudy Giuliani, on cable news.

I vigorously oppose the president’s immigration orders as a matter of policy, but these opinions are misguided. As O’Connor warned, it is not the court’s job to peer into the president’s psyche. And it doesn’t matter if Trump is somehow different than his predecessors, or if he insults judges in a shocking breach of Oval Office decorum. The judiciary should not abandon its traditional role simply because the president has abandoned his.

On the topic of “forever taint”:

This entire line of analysis is mistaken. The courts tarred Trump with the brush of bigotry by citing statements that were not connected with the executive order at issue, but rather showed his general state of mind towards Muslims. Such introspection is precisely what Souter advised against in McCreary County v. ACLU: a “judicial psychoanalysis of a drafter’s heart of hearts.” Generally in courts, “evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Absent evidence that the policy at question in fact was actually motivated by this anti-Muslim animus—and no, Giuliani’s nebulous comments do not count—the court’s opinion amounts to a psychological profile of a perplexing man who has taken contradictory policies on virtually every issue in public discourse.

Although the judge in Hawaii rejected the notion that Trump’s “past conduct must forever taint any effort by [him] to address the security concerns of the nation,” it is hard to see how this analysis would ever permit the executive branch to impose any immigration policy that impacts predominantly Muslim countries. Imagine if Trump announces that he will conduct drone strikes in Syria to root out “radical Islamic terrorists”? Could a court halt the actions, finding they were motivated by the same anti-Muslim animus the president expressed on the campaign trail? Or, could a court halt an executive action for supposedly bearing animus towards women, by citing the president’s infamous rapport with Billy Bush on Access Hollywood? Nothing Trump can do would ever eliminate that taint.

And to keep the cable-news theme, the conclusion:

A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why aliens seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.

Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.

I will have more to say about this in a series of blog posts today. I will be doing NPR All Things Considered, as well as Fox Business’s Lou Dobbs Tonight.