Pretext, Reality, and Verisimilitude: Truth-Seeking in the Supreme Court

Robert N. Weiner* July, 2023

Abstract

The assault on truth in recent public discourse makes it especially important that judicial decisions about Executive actions reflect the world as it is. Judges should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, however, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative or Presidential action. Such intentional judicial blindness or suspension of justified disbelief—such lack of verisimilitude—can sow doubt regarding the Court’s candor and impartiality.

In analyzing the Court’s fealty to objective reality in its review of Executive actions, this Article focuses primarily on two Supreme Court decisions: the Travel Ban Case and the Census Case. These decisions illustrate how the mode of judicial review can influence verisimilitude. In the Travel Ban Case, the Court refused to look behind an implausible explanation of the government’s actions, a paradigm judicial departure from verisimilitude inimical to the legitimacy of the Court. The Census Case is a less direct assault on objective reality, as the Court ultimately did examine the truthfulness of the government’s justifications. But it did so in a manner that does not manifest a vital commitment to truth.

This Article will also touch upon a third case: U.S. Department of Homeland Security v. Regents of the Univ. of Cal. (the DACA Case). The DACA Case did not challenge objective reality but on the contrary insisted that agencies provide the actual reasoning behind their decisions rather than justifications they thought of later, even if those justifications were otherwise valid. The case thus reinforces the importance of candor and accuracy.

A key lesson from these cases is that to preserve its legitimacy, the Court should abandon or modify doctrines that cede judicial review of national security issues, limit consideration of `pretext, decline to assess the intent of government actors, and indulge a presumption of regularity for administrative determinations. These reforms are achievable without a major overhaul of administrative law standards.

“Hear now this, O foolish people, and without understanding; which have eyes, and see not; which have ears, and hear not.”¹

Verisimilitude: the appearance of being true or real.²

I. Introduction

United States courts should be an oasis of truth in a truth-parched landscape. The Nation has spent much of the last decade beguiled, confused, and repulsed by purveyors of “alternative facts.” These invented facts ranged from the size of the crowd at the 2016 Inauguration,³ to climate change⁴ and Covid-19,⁵ to 30,000 plus other Presidential falsehoods identified by independent fact-checkers during the Trump Administration.⁶ President Donald Trump expected Americans to credit his statements over scientific fact, objectively verifiable truth, and even their own observations. Without intended irony, he told supporters, “[j]ust remember, what you’re seeing and what you’re reading is not what’s happening,”⁷ as in, “Who ya gonna believe, me or your own eyes?”⁸

Facilitating this rise of alternative facts is the intensification of partisan identification. It has become so integral to the self-image of many individuals that they bend reality to fit their preconceptions, rather than modify their views to fit the facts.⁹ In other words, Americans have violated Senator Daniel Patrick Moynihan’s maxim, “[e]veryone is entitled to his own opinion, but not to his own facts.”¹⁰ Partisans now do have their own facts, a phenomenon exacerbated by the fractionation of news sources according to ideology.¹¹ Viewers can pick their slant and many only pay attention to stations, websites, podcasts, Twitter feeds, or other sources they agree with.¹² The result is that some receptive audience will inevitably view the false explanation as gospel.

During this chaotic political era, judicial decisions about Executive actions should reflect the world as it is. These decisions should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative—in particular, Presidential—action.¹³

Such approaches have led the Court to blind itself to obvious facts regarding government misconduct and to reach conclusions at odds with common sense. Whatever the justifications for these disabling approaches, the facts that appear to be “true” or “real” to ordinary observers clash with the “facts” that the Court adopts or lets stand.

The divergence is particularly troublesome when the Supreme Court disregards or overrides factual findings of a lower court or legislature in the face of clear evidence that government officials acted dishonestly or invidiously. In these episodes of intentional judicial blindness or suspension of justified disbelief, the discrepancies between the real world and the judicial construct can sow doubt regarding the Court’s candor and impartiality, not to mention its insulation from the erosion of truthfulness across the social landscape. In other words, lack of verisimilitude can undermine the Court’s legitimacy.

Some defend this incongruity. In addressing the pretextual characterization of the Travel Ban in Trump v. Hawaii (the Travel Ban Case),¹⁴ Professor Josh Blackman argues that the judiciary must “focus on legality, even if it conflicts with reality.”¹⁵ But whether or not that is true of lower courts, the Supreme Court to a large extent establishes legality. It decides whether to create, invoke, abrogate, or carve out an exception to a doctrine of deference.¹⁶ The wrong choice can create an unnecessary mismatch between the real facts and those the Court accepts.

The irony is that the approaches to judicial review of Executive action causing these mismatches are designed, at least partly, to safeguard judicial legitimacy.¹⁷ Presumptions, deference, and narrow standards of review can prevent courts from appropriating authority properly delegated to the Executive Branch.¹⁸ They can avert the antagonism of the other branches of government,¹⁹ and they can steer courts away from esoteric areas that lay judges cannot readily master.²⁰ But non-jurisdictional doctrines limiting judicial review of Executive action are not sacrosanct. They should be more malleable than the truth. When, in the hands of the Supreme Court in particular, so-called legality displaces reality, the discontinuity may damage the Court’s public standing.

Truthful explanations of government actions are central to both the integrity and the effectiveness of the administrative process, to the viability of judicial oversight, and to public accountability.²¹ Agencies forced to explain their decisions make better decisions.²² Courts cannot effectively review decisions if misled regarding their bases. It would be anomalous, if not inane, to allow courts to assess whether the government’s explanations of its actions are arbitrary and capricious, but not whether they are true. Examining the veracity of officials’ explanations of their conduct is an essential component of judicial review under the arbitrary and capricious standard, at the very least where there is reason to believe that government actors have provided false explanations.²³ Yet—unlike some lower courts, including the trial court in the Department of Commerce v. New York—the Supreme Court has artificially siloed review of arbitrariness from the explicit determination of veracity.²⁴

When the Supreme Court recently examined the truth of the government’s claims under the Administrative Procedure Act in Department of Commerce v. New York (the Census Case),²⁵ it departed from the usual review of administrative action and instead used the rubric of pretext.²⁶ By treating the inquiry into pretext as so extraordinary, the Court both underuses an important line of analysis and potentially increases its stigma when it is employed. Instead, the Court should treat pretext as a prefatory portion, or at least an integrated part, of the determination of whether a government action is arbitrary and capricious. This is especially true when—with no presumptive thumb on the scale—there is reason to doubt the veracity of the government’s explanations. Further, the Court should minimize categorical exclusions from review that treat the truth as secondary to legality.

The determination of whether Executive actions are arbitrary and capricious may branch at the outset into an explicit assessment of pretext, but this does not mean that a court must follow that trail absent further evidence of falsehood. Nor does it mean that courts should regularly allow intrusive discovery beyond the administrative record into the intent of government actors. In most cases, the administrative record establishes both the basis for the agency’s action and the truthfulness of its explanations. If it does not, then that fact will often justify either striking down the action or inquiring further into the reasons offered for it.²⁷

Thus for the most part, whether to allow extra-record discovery is a separate issue from whether to inquire into pretext. Evidence of pretext by itself may not justify requiring supplementation of the record. The party seeking the discovery should have to demonstrate, in addition to evidence of pretext, that 1) the administrative record is inadequate to allow evaluation of the issue, and 2) that a remand to the agency is not an appropriate response.

Contrary to the Chief Justice’s concerns in the Census Case,²⁸ consideration of pretext does not disallow a role for political factors in Executive decision-making. Determining which real reasons are sufficient to sustain the government action is a separate question from whether the reasons offered are pretextual. The legal sufficiency of the real reasons need not be resolved to justify an inquiry into whether the explanations offered are a sham.

In analyzing the Court’s fealty to objective reality in its review of Executive actions, this Article will focus primarily, but not exclusively, on two Supreme Court decisions: the Travel Ban Case²⁹ and the Census Case.³⁰ These decisions illustrate how the mode of judicial review can influence verisimilitude. In the Travel Ban Case, the Court refused to look behind an implausible explanation of the government’s actions, a paradigm judicial departure from verisimilitude that can undermine the legitimacy of the Court. The Census Case is a less direct assault on objective reality, as the Court ultimately did examine the truthfulness of the government’s justifications. But it did so in a manner that does not instill confidence in the vitality of its commitment to truth.

This Article will also analyze, to a lesser degree, a third case: U.S. Department of Homeland Security v. Regents of the Univ. of Cal. (the DACA Case).³¹ The DACA Case also illustrates the effect of judicial review on verisimilitude, but it is different from the previous two cases. For the most part, it did not challenge objective reality but on the contrary insisted that agencies provide the actual reasoning behind their decisions rather than justifications they thought of later, even if those justifications were otherwise valid. The case thus reinforces the importance of candor and accuracy.

Why focus on these cases out of many? First, the cases were particularly high profile.³² The greater attention means that the result was more likely to affect public perceptions of the Court. Second, the cases reached the Court after at least one lower court had ruled against the executive branch, striking down a major presidential program or initiative.³³ Thus, intense conflict between the executive and judicial branches was baked into the cases, heightening the drama and boosting the intensity of public opinion. Third, public opinion on the issues in the cases divided along partisan lines.³⁴ This increased the prospect that the losing partisans would dismiss the result as political, with the lack of verisimilitude providing both ammunition and inducement to do so. And fourth, fortifying this partisan narrative, the Court itself divided based largely on the party of the President who appointed each justice, with the Chief Justice—reflecting perhaps, his institutional perspective—as the swing vote.³⁵

One might argue that these cases are sui generis: relics of a Trump Administration that was deliberately contrarian and disdainful of the rule of law.³⁶ But nothing about these decisions suggested that the approach they took was of limited applicability, and all presidents in recent history have pushed the boundaries of their power. In any event, it is far from clear that the Trump era is over. These cases thus illuminate issues that could have long term effects on the legitimacy of the Court.

As shown below, one key lesson from the three cases is that to preserve its legitimacy, the Court should reject, revise, or recalibrate the doctrines governing judicial review of executive branch actions to forestall results that defy reality and common sense. In particular, the Court should modify doctrines which cede judicial review of national security issues,³⁷ limit consideration of pretext,³⁸ decline to assess the intent of government actors,³⁹ and indulge a presumption of regularity for administrative determinations.⁴⁰ These reforms are achievable without a major overhaul of administrative law standards.

II. The Legitimacy of the Judicial Branch

Because of their supposed lack of tangible power compared to the other branches of government, the Supreme Court and lower courts have generally gained credence as authoritative arbiters of disputes between individuals, governments, and institutions. Alexander Hamilton described the Judiciary as the “least dangerous” branch because, unlike the executive and legislative branches, the Judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”⁴¹ The Supreme Court and constitutional scholars have often echoed this point.⁴²

This perception affects the public as well. Members of the public generally accept even judicial decisions, even when they disagree with the result,⁴³ a key token of legitimacy.⁴⁴ With this legitimacy, nine Justices with no military or police power to speak of can order a President to change his policies—and make it stick.⁴⁵

Legitimacy arises from at least two principal sources. The first is necessity. As one observer notes, “The government’s support [for the Court] is acquired because the executive branch acknowledges the value of the Court’s judgment in a manner similar to a patient who recognizes a doctor’s expertise.”⁴⁶ Someone must do what courts do to maintain the social order. The lack of an effective judicial system has been an obstacle to progress in many developing countries.⁴⁷ Without well-functioning courts, businesses cannot enforce contracts or protect themselves from unfair government coercion.⁴⁸ Without a trusted judicial system, the stronger party—physically, economically, or martially—will usually prevail. The resulting reign of Hobbesian lawlessness and uncertainty is toxic to economic growth and stability, not to mention personal freedom.⁴⁹

Still, need by itself might generate little more than grudging submission rather than broad and ready acceptance of judicial rulings. The additional requisite is that the public view the courts as fair and impartial, or at least, as coming sufficiently close to that mark to make the outcome of the judicial process acceptable regardless of who wins. This perception and the resulting acceptance are in peril. The hyper-partisanship that characterizes American society makes it increasingly difficult for the Court to maintain even a patina of impartiality. The descent of the confirmation process into party-line votes on judicial nominees, the outsourcing of judicial selection to private ideological organizations, the chicanery and bitterness that have characterized the debates about prospective judges, undercut the perception of nonpartisan impartiality.⁵⁰ As Professor Gillian Metzger notes, “[c]hallenges to the Court are at new levels, pushed there by the deep political divides over the courts that were evident in the recent political battles over Justice Kavanaugh’s confirmation and Judge Merrick Garland’s failed nomination, and the resultant rightward shift of the Court’s membership.”⁵¹

Thus, although the Supreme Court remains the most respected branch of the federal government (perhaps a low threshold),⁵² a Quinnipiac University Poll reports that only 37% of registered voters have a favorable view of the Court, with 49% holding an unfavorable view and 14% offering no opinion.⁵³ This was the lowest rating since Quinnipiac began conducting a survey about the Court in 2004.⁵⁴ According to a recent Gallup Poll, the Court’s approval rating was 40% down from 49% in July. This rating was the lowest in the 20-year history of Gallup’s polling on the subject.⁵⁵

The public’s view of the Court is leavened with a strong dose of partisanship. In certain cases—particularly cases that confront important public policies or benefit one political party—the Justices’ votes almost invariably fall according to the party of the President who appointed them.⁵⁶ With the increasingly conservative cast of the Court, the partisan divide in perceptions of the Court has widened. According to Quinnipiac, by 2019 75% of Republicans and those leaning Republican had a favorable view of the Court, compared to slightly less than half of Democrats and Democratic-leaning independents.⁵⁷ This gap was the largest in twenty years.⁵⁸ Gallup reported a smaller, but still significant partisan gap, with 36% of Democrats and 45% of Republicans approving of the Court.⁵⁹ The trend was of sufficient concern to prompt Justice Breyer to write an entire book defending the legitimacy of the Court.⁶⁰

President Trump, with his transactional view of the Justice system,⁶¹ both reflected and stoked the cynicism of many Americans regarding the partisanship of the judiciary, undermining the courts by attacking jurists and calling out “Obama judges” and “Trump judges.”⁶² The Chief Justice rebuked him for that characterization, admonishing that judges are not defined by the party affiliation of the President who appointed them.⁶³ Yet there was just enough substance to the President’s comments to mirror—and perhaps feed—public misgivings, even though the Court’s legitimacy is not especially fragile. Unhappiness about individual results is usually evanescent, mediated by a reservoir of legitimacy. The Court even recovered—eventually—from the direct public reaction to Bush v. Gore.⁶⁴ But there is a cumulative effect on that reservoir, and, cumulatively, the Court’s standing has eroded.

A. Court Legitimacy in Voting Rights Litigation

One ought not to address the prevalence and perception of partisanship in the courts without discussing one relative bright spot—the litigation after the 2020 Presidential Election. It tested the legitimacy of the courts and they performed well, with judges departing from the partisan lockstep some observers had expected. At least eighty-six judges, thirty-eight of them Republican, rejected the wild claims of the Trump-affiliated lawyers and the extraordinary, disenfranchising remedies they sought.⁶⁵ Court after court demanded evidence of misconduct and criticized the lawyers when they presented none.⁶⁶ As one Trump-appointed District Judge observed, “[t]his Court has allowed [the President] to make his case and he has lost on the merits. In his reply brief, [the President] ‘asks that the Rule of Law be followed.’ It has been.”⁶⁷ Another Trump appointee on the U.S. Court of Appeals for the Third Circuit opined that, “[c]harges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”⁶⁸ Finding against the Trump forces in some sixty-one out of sixty-two rulings,⁶⁹ the courts drew praise from many observers for reality-based judging—a low, but critically important bar for congratulations.⁷⁰

Two relevant lessons emerge from the election litigation. First, the courts functioned the way the public expected them to function, as independent arbiters of the most important dispute facing the country.⁷¹ The courts could fill this role because the public, though not without its doubts, still perceived the courts as essentially neutral, or at least they respected its institutional role. Despite erosion in its standing, the Judiciary continues to have legitimacy as the forum for resolution of key legal disputes, even those with a significant political component.

But the experience regarding the post-election litigation also shows the finite reach of the courts’ legitimacy. Notwithstanding the sixty-one rulings against Trump’s position and the repeated unrequited demands by Trump-appointed judges for evidence supporting the charges of election fraud—not to mention the assurances of Trump’s Attorney General, the Director of the FBI, and the head of cybersecurity at the Department of Homeland Services—tens of millions of Americans, including 70% of Republicans, continue to believe that the election was stolen.⁷²

The second lesson is that one feature of the judicial process reinforced the courts’ legitimacy in the aftermath of the election—its commitment to truth in litigation. That discipline does not bind as forcefully outside the courtroom. For example, although the Supreme Court held that the First Amendment barred prosecution of the defendant in U.S. v. Alvarez⁷³ for stolen valor—a false public claim that he won a military medal—it would have not protected him had he made that claim in court.⁷⁴ The oath to tell the truth, the consequences of lying, the penetrating acuity of the adversarial process, and the lawyers’ duty of candor to the court make it far more likely that participants will tell the truth inside the courtroom than outside it. In the event, the lies that were endemic both to the political campaign and to the attack on the election results mostly—though not uniformly—stopped at the courthouse door. Lawyers who stood on the steps of the courthouse and publicly charged fraud in the casting and counting of ballots admitted in court that their lawsuit did not allege or could not establish fraud.⁷⁵ When lawyers did not maintain that Maginot Line, they found themselves subject to professional discipline.⁷⁶ All in all, the judiciary’s role as a (last) refuge for fact-based argument contributed to the legitimacy of the courts.

It is thus particularly troubling—and in the long term, perilous—when the Supreme Court issues opinions that ignore obvious facts or defy common sense—in short, when its opinions lack verisimilitude. As Professor Metzger notes, “the Court’s reasoning, and not just its results, can affect the Court’s legitimacy. . . . [P]erceptions that the Court is politicized, that the Justices are ‘little more than ‘politicians in robes’ who engage in ‘strategic, rather than sincere decision making,’’do have a legitimacy-undermining effect.”⁷⁷ Professor Richard Fallon states that legitimacy turns on “whether the Justices employ reasonable and consistent decision making methodologies, exhibit fidelity to legitimate prior authorities, show morally good substantive judgment in establishing law for the future, and maintain a fair distribution of political authority among courts and other institutions.”⁷⁸

When decisions blink the obvious facts, it raises questions regarding the Court’s own candor, which is essential to its legitimacy. As Professor Thomas Merrill observes, “[c]areful attention to fact finding is important, since the fact-finding process will nearly always be perceived by the parties as having an objective foundation in the world outside the courtroom.”⁷⁹ The public is more likely to recognize a major factual mistake, in particular, an offense against common sense, than some legal errancy. Those who pay attention may get over their disappointment regarding the result in a particular case more readily than their dismay at the Court’s perceived lack of candor, common sense, or fairness.⁸⁰ Although no polls or political science models have measured the effect of defects in verisimilitude, the focus on the issue in dissenting opinions, news articles, editorials, blog posts, and scholarly articles signals its importance.⁸¹

III. The Supreme Court’s Sparring With Verisimilitude

A. The Travel Ban Cases

1. President Trump’s Anti-Muslim Statements

President Trump has a long history of anti-Muslim statements. On December 7, 2015, then-candidate Trump “call[ed] for a total and complete shutdown of Muslims entering the United States.”⁸² He said on his campaign website that Muslims’ “hatred [of the United States] is beyond comprehension,” and that until we can “determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people who believe only in Jihad, and have no sense of reason or respect of human life.”⁸³ On December 8, 2015, apparently unaware of the disrepute into which the Korematsu opinion has fallen, Trump defended this proposal by noting that the United States had interned Japanese-Americans during World War II.⁸⁴ In March 2016, he announced that “Islam hates us,” and that we cannot allow people into the country who hate the U.S. and non-Muslims.⁸⁵ That same month, he called for surveillance of mosques because “we’re having problems with Muslims coming into the country.”⁸⁶

Facing accusations of anti-Muslim bias, Trump changed his phrasing but not his message. His attacks began to focus on immigration from countries “where there is a proven history of terrorism.”⁸⁷ But he made clear that the change was purely linguistic because “[p]eople were so upset when [he] used the word Muslim.”⁸⁸ Just before the 2016 election, Trump stated that his Muslim ban had “morphed into [] extreme vetting from certain areas of the world.”⁸⁹ He gave a winking answer to the question whether he would rethink his “‘plans to create a Muslim registry or ban Muslim immigration.’”⁹⁰ Meanwhile, his promise to bar Muslims from entering the United States remained on the Trump Campaign website until May 2017, four months after the Inauguration.⁹¹

2. The Travel Ban Orders

Seven days after taking office, President Trump issued an Executive Order banning entry into the United States by immigrants from seven overwhelmingly Muslim countries.⁹² The Executive Order skipped the usual internal vetting for such pronouncements, with no interagency consideration and no plan for an orderly rollout.⁹³ The ban was to last for ninety days, ostensibly until the Administration could determine whether screening procedures for those countries were sufficient to weed out potential terrorists. Further, the Order explicitly focused on religion, allowing the Christian minority in these countries to emigrate to the United States.⁹⁴

The Order produced pandemonium. Individuals with visas who were on their way to the United States were denied entry upon their arrival at U.S. airports. The chaos intensified when the Administration suggested that the Order covered permanent resident aliens in the U.S. holding green cards, and then reversed itself a week later.⁹⁵ The U.S. District Court for the Western District of Washington promptly enjoined the Administration from implementing the ban.⁹⁶

While the White House professed confidence that the Order was constitutional, their actions reflected greater skepticism. Rather than appeal the injunction, the White House withdrew the Order and issued a new one shortly thereafter.⁹⁷ This new Order restricted entry of nationals from six of the countries covered in the first Order—Iran, Libya, Somalia, Sudan, Syria, and Yemen—ostensibly selected because each was “a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.”⁹⁸ The Order allowed case-by-case waivers of this prohibition. The Order was to be in effect for 90 days pending completion of the worldwide review mentioned in the first Order. ⁹⁹

Again, the process the Administration followed in promulgating the new Order was irregular. For example, a draft report from the Department of Homeland Security prepared two weeks before issuance of the revised order stated that citizenship in a particular nation “is unlikely to be a reliable indicator of potential terrorist activity” and that citizens of countries affected by the Executive Order are “[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.”¹⁰⁰ The final report, reflecting edits by political appointees, dropped those observations.¹⁰¹

In statements that undoubtedly exasperated their legal team, Trump and his advisers portrayed the changes from the first to the second Order as merely cosmetic. Rudy Giuliani, an outside adviser to President Trump, made clear that the Executive Order was a faintly camouflaged Muslim ban. Giuliani noted that Trump had been criticized for referring to a Muslim ban, and asked Giuliani to “show [him] the right way to do it legally.”¹⁰² A senior adviser to the President described the changes as “mostly minor technical differences.”¹⁰³ Trump’s Press Secretary maintained that the new Order fulfilled the President’s campaign promises (which included a ban on Muslims entering the United States).¹⁰⁴ Trump characterized the second iteration as “a watered down version of the first one,” expressed a desire to return to the original version, and said that Muslims had difficulty assimilating into the United States.¹⁰⁵ Later, he tweeted that the lawyers could call the Order whatever they wanted, but “I am calling it what we need and what it is, a TRAVEL BAN!”¹⁰⁶ He tweeted in September that “[t]he travel ban into the United States should be far larger, tougher and more specific–but stupidly, that would not be politically correct!”¹⁰⁷

The U.S. district courts for Hawaii and Maryland enjoined implementation of the Order, and the courts of appeal for the Ninth and Fourth Circuits affirmed. The Ninth Circuit determined that the Executive Order violated the immigration laws, and therefore the court did not need to address the Establishment Clause claim for discrimination against Muslims.¹⁰⁸ The Fourth Circuit addressed the Establishment Clause claim, finding that the Executive Order, “drips with religious intolerance, animus, and discrimination.”¹⁰⁹ In the Court’s view, there was “simply too much evidence that [the order] was motivated by religious animus for it to survive any measure of constitutional review.”¹¹⁰

The Administration appealed and sought a stay from the U.S. Supreme Court pending appeal. Apparently viewing the orders as overbroad but not unfounded, the Court stayed the injunctions as to all immigrants who did not have a demonstrated relationship with family members in the United States. For those who did have such a relationship, the injunctions remained in force. The Court also granted review and calendared the case for Fall 2017.¹¹¹

While the case was pending before the Supreme Court, the ninety-day term of the second order expired, and the Court vacated the lower court rulings as moot.¹¹² The Administration then issued a third iteration of the travel ban, this time labeling it a “Proclamation,” perhaps to distance it from the prior versions that had fared poorly in court.¹¹³ This rendering, issued after completion of the “worldwide review,” restricted the entry of nationals from eight countries that the Administration maintained had inadequate systems for managing and sharing information with the United States.¹¹⁴ This time, the ban had gone through an interagency process in which the Department of Homeland Security, in consultation with the Department of State and intelligence agencies, ostensibly assembled and evaluated the data received from foreign governments. After diplomatic efforts by the State Department to convince foreign countries to improve their monitoring of emigres, DHS concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—were deficient.¹¹⁵ On the Acting Secretary of DHS’ recommendation and after consultation with other Cabinet Members, the President removed Iraq from the list, added Somalia, and issued the Proclamation.¹¹⁶ Hawaii and Maryland sued again. The District Court for Hawaii again enjoined the ban, and the Ninth Circuit affirmed.¹¹⁷ The Supreme Court considered this Order.

3. The Supreme Court decision

Focusing first on statutory construction, the Court found that the Immigration and Naturalization Act accorded the President broad authority to “‘suspend the entry of all aliens or of any class of aliens’ whenever he ‘finds’ that their entry ‘would be detrimental to the interests of the United States.”¹¹⁸ In the Court’s view, the provision “exude[d] deference to the President in every clause.”¹¹⁹ It afforded the President discretion to determine whether and when to suspend entry into the United States, whose entry to suspend, for how long, and on what conditions.¹²⁰ Inquiry into the “persuasiveness of the President’s justifications,” the Court held, was inconsistent with the text of the statute and the deference it accords.¹²¹

The Court also rejected the argument that Section 1152(a)(1)(A) of the Act barred exclusion of aliens based on several characteristics, including “place of residence.” The Court held that this provision applies only after aliens were found to be admissible into the United States.¹²²

The Court then turned to the claim that the Travel Ban violated the Establishment Clause and the Fifth Amendment’s equal protection component because it barred Muslims from entering the United States based on their religion. The Plaintiffs alleged that the Administration’s security arguments were pretextual and that the Travel Ban in truth rested on anti-Muslim animus.¹²³

Citing Kleindienst v. Mandel, a First Amendment challenge to the exclusion of a Marxist scholar seeking to attend academic conferences and discussions in the United States, the Court ruled that the standard for a claim of religious discrimination regarding visa applications differed from the standard applicable to a domestic claim of discrimination.¹²⁴ All that was required to uphold the exclusion of foreign entrants was a “facially legitimate and bona fide reason,” which the Court would neither “look behind” nor balance against the “asserted constitutional interests of U.S. citizens.”¹²⁵ Mandel’s narrow standard of review, the Court held, had “particular force” when it overlapped with national security.¹²⁶ The President’s statements about Muslims, in the Court’s view, were largely irrelevant. The Proclamation was facially neutral; it did not say that it was excluding Muslims based on their religion.¹²⁷ Rather, it said that the exclusion turned on the ability of their home countries to assist in vetting entrants to the United States.¹²⁸ That, on its face, was a legitimate security rationale. In the Court’s view, even if the President also acted based on animus, the presence of a facially adequate security rationale was sufficient to uphold the ban.¹²⁹ The Court therefore refused to look behind the Proclamation to assess whether the rationale was pretextual and whether the procedures were window dressing. Fully accepting the bona fides of the administrative review of the Proclamation, the Court credulously noted that it arose out of a “worldwide review process undertaken by multiple Cabinet officials and their agencies,” was subject to biannual review by multiple Cabinet officials, and provided a waiver procedure to consider individual requests to enter the country.¹³⁰ As one observer described the Court’s approach, “Instead of requiring the government to disavow the President’s animus, the Court merely determined that animus was not the sole motive for the ban because the President had later articulated a national security rationale.”¹³¹

Having accepted without inquiry the Government’s asserted purpose “to protect the country and improve vetting processes,” the Court merely had to determine whether the entry policy is “plausibly related” to that objective.¹³² But the examination of plausibility concerned only whether there was a rational relationship between the travel restrictions and the Administration’s stated objective, not whether the stated objective was the real objective.¹³³ Thus, once the President asserted a national security justification, the Court’s inquiry was effectively over, making animus actionable only when it is the sole motive for the exclusion.

4. The dissents

There were two dissents.¹³⁴ Justice Breyer, joined by Justice Kagan, penned a cautious, middle-way opinion stating that if the Proclamation “was significantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself.”¹³⁵ Noting that the Proclamation provides for case-by-case exemptions and waivers from the Travel Ban, Justice Breyer observed that the Government’s record in granting or denying those waivers would verify or refute its claimed security rationale. In his words, if the Government granted those waivers and exemptions, it would “help make clear that the Proclamation does not deny visas to numerous Muslim individuals (from those countries) who do not pose a security threat.”¹³⁶ Conversely, if the program did not grant waivers or exemptions to individuals who plainly were not security risks, then it would be clear that the security rationale for the Travel Ban was a sham.¹³⁷

The initial returns, Justice Breyer observed, were not encouraging. DHS had promulgated no guidance to the field regarding the standards to be applied in the waiver program, and the number of waivers granted was trivial, as was the number of student and nonimmigrant visas.¹³⁸ This evidence heightened Justice Breyer’s concerns. Even so, he recognized that the Government had not had an opportunity to respond to the evidence. Therefore, he concluded, given the “need for assurance that the Proclamation does not rest upon a ‘Muslim ban,’ and the assistance in deciding the issue that answers to the ‘exemption and waiver’ questions may provide, I would send this case back to the District Court for further proceedings,” keeping the injunction in place in the interim.¹³⁹ If required to decide the case without the further litigation, he would find the evidence of antireligious bias sufficient to set the Proclamation aside.¹⁴⁰

The Chief Justice refused to look at the waiver program as a barometer of the truthfulness of the Government’s explanation. He dismissed Justice Breyer’s suggestion with the non sequitur that, even if assessing the waiver program were permissible under rational basis review, Justice Breyer had conceded that the evidence was “but a piece of the picture” and did not affect the Court’s analysis.¹⁴¹ He misconstrued Justice Breyer’s opinion; Justice Breyer’s “piece of the picture” qualification referred only to the number of student visas issued under the exemption in the Proclamation for certain nonimmigrant visas, which Justice Breyer considered along with the more significant number of waivers requested under the Proclamation.

Justice Breyer’s proposal would have spared the Court from blinding itself to the overt animus behind the President’s conduct. It also could have lowered the temperature of the case, enmeshing the litigation in relatively bland fact-finding about the number of waivers and visas being granted and the standards being applied. It would not have denied or brushed aside the common-sense conclusions flowing from the evidence in the record.

Justice Sotomayor’s dissent, joined by Justice Ginsburg, invoked the imagery of pretext and willful blindness.¹⁴² It seethed with outrage, focusing on the Court’s refusal to acknowledge and act upon what she regarded as indisputable evidence of Trump’s religious bias.¹⁴³ She accused the Court of leaving “undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”¹⁴⁴ “Repackaging” the ban now in a third iteration, Justice Sotomayor observed, “does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created.”¹⁴⁵ In Justice Sotomayor’s view, the evidence in the record established animus to any reasonable observer, and the Court could hold otherwise only by “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”¹⁴⁶ Justice Sotomayor cataloged the President’s anti-Muslim statements in detail, concluding that, “Given the overwhelming evidence of anti-Muslim animus, it simply cannot be said that the Proclamation has a legitimate basis.”¹⁴⁷ She attacked the “majority’s apparent willingness to throw the Establishment Clause out the window and forgo any meaningful constitutional review at the mere mention of a national-security concern.”¹⁴⁸ “Deference,” she said, “is different from unquestioning acceptance,” and the Court should not “close its eyes” to relevant information.¹⁴⁹

To the evident irritation of the Chief Justice,¹⁵⁰ Sotomayor ended by drawing multiple parallels between the Travel Ban Case and Korematsu. In her peroration, she proclaimed that, “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu.”¹⁵¹

5. Effect on Legitimacy

In the Travel Ban Case, the Court faced a choice not between reality and legality, but between reality and legalism.¹⁵² It chose legalism. Justice Sotomayor’s dissent zeroed in on the Court’s refusal to confront reality. Her dissent is laced with accusations referring to the majority’s “turn[ing] a blind eye,” “blindness,” being “blind to,” “unquestioned acceptance,” “closing its eyes,” and allowing a “masquerade.” In Justice Sotomayor’s view, the majority ignored the reality of religious animus against Muslims. Justice Sotomayor’s invocation of Korematsu left no doubt regarding her assessment of the Court’s opinion.

With one exception, opinion polls did not isolate the public’s response to the Travel Ban opinion.¹⁵³ But the reaction among legal elites—the Court’s principal audience, who have significant effect on the public perception of the Court¹⁵⁴—harshly echoed Justice Sotomayor’s critique. Critic after critic sounded Justice Sotomayor’s theme—the Court’s blindness to reality—frequent invoking “what everyone knows,” i.e., common sense. In an op-ed entitled, “A Decision That Will Live in Infamy,” Professor Noah Feldman slammed the Court for an offense against common sense, noting that the case “elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here—namely, prejudice.”¹⁵⁵ Likewise, Professor Marty Lederman wrote that the Court’s conclusion “is belied by a fundamental thing that virtually everyone knows (and that the Court does not deny)[,]” that the travel ban seeks to exclude Muslims to make good on Trump’s campaign promise.¹⁵⁶ Conservative scholar Ilya Somin began his op-ed with the aphorism, “[t]here are none so blind as they who choose not to see.”¹⁵⁷ Professor Neil Katyal, who argued the case, referred repeatedly to the Court’s “blind deference.”¹⁵⁸ Even Professor Blackman, who defended the Court’s opinion, acknowledged that the Travel Ban rested on anti-Muslim animus.¹⁵⁹

Editorials also challenged the Court’s willfully blind approach to the President’s anti-Muslim statements. The Chicago-Sun Times editorialized that the Court “pretended” the Travel Ban “could not [be] rejected as unconstitutionally discriminatory, no matter how many times [Trump] called it a ‘Muslim ban,’ ‘ because those explicit words appear nowhere in the final version of the ban. The ban, wrote Chief Justice John Roberts, is ‘neutral on its face.’ What a specious argument.”¹⁶⁰ The Boston Globe opined that the Travel Ban, “more rightly called a Muslim ban, was upheld by the Supreme Court despite the Trump administration’s lack of effort to disguise its discriminatory intent.”¹⁶¹ Columnist Max Boot accused the Court of “see[ing] no evil.” He stated that the majority “acted as if the travel ban were a rational response to a national security threat – when, in reality, it was an attempt to codify Trump’s anti-Muslim animus into law.”¹⁶² With satirical bite, he compared the Court to Sergeant Schultz in the sitcom Hogan’s Heroes, who repeatedly intoned, “I see nothing! I hear nothing!”¹⁶³ The Detroit Free Press accused the Court of giving “bigotry a fig leaf,” by “turn[ing] a blind eye to both its author’s transparent bigotry and the court’s constitutional responsibility.”¹⁶⁴ David Cole, national legal director of the ACLU, opined in the Washington Post that, “Judges shouldn’t ignore what we all know Trump’s travel ban is really about.”¹⁶⁵

Politicians and interest groups also mirrored the theme of blindness. The Ranking Member of the House Judiciary Committee said that, “the Court willfully turned a blind eye to the religious animus motivating the President when he issued the travel ban and would have us pretend that we did not hear the President’s words when he spoke of a ‘total and complete shutdown of Muslims entering the U.S.’”¹⁶⁶ The Governor of Washington, a party to the case, likewise accused the Court of “turning a blind eye to the [P]resident’s own words and our country’s constitutional protections against discrimination.”¹⁶⁷ Senator Amy Klobuchar quoted Justice Sotomayor’s accusation that the Court was “turning a blind eye to pain and suffering.”

The lack of verisimilitude in the Trump v. Hawaii fueled claims that the Court was deliberately ignorant, subservient to the Trump Administration, and callous. The Court’s standing ultimately may recover from this hit. But the high profile of the case and the common-sense appeal of these attacks suggests a substantial risk to the Court’s legitimacy.

B. The Census Case

The Census Case presented neither national security concerns nor a constitutional claim, and the Court backed away from its refusal to look behind an executive branch decision. Nonetheless, it still treated the inquiry into pretext as an extraordinary, isolated cul-de-sac in administrative law, rather than an essential throughway in assessing the executive’s reasons for its actions. Further, the Court undertook an odd, uncritical analysis accepting the Government’s fictitious justification before ultimately “unsuspending disbelief” and deeming it pretextual.

1. The census

The case concerned the 2020 iteration of decennial litigations that have long accompanied the census. The near inevitability of lawsuits over the Census reflects the enormous political importance of the exercise.¹⁶⁸ The population counts that the Census Bureau prepares determine the allocation of not only Congressional seats among the states, but also federal aid.¹⁶⁹ Accuracy is critical. The Census Bureau has an obligation to count every person to the extent possible.¹⁷⁰ They do so by mailing a questionnaire to every household, and following up with face-to-face interviews of people who do not complete and return it.¹⁷¹

The Census Bureau generally seeks to avoid partisanship, but it is not an independent agency. Rather, it resides in the Department of Commerce.¹⁷² Trump’s Secretary of Commerce, Wilbur Ross, was a former businessman with no background in population statistics.¹⁷³ The statute governing the Census authorizes the Secretary not only to undertake a census of “population, housing, and matters relating to population and housing,”¹⁷⁴ but also to “obtain such other census information as necessary.”¹⁷⁵ The statute further empowers the Secretary to “determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses” he conducts and to acquire materials in aid of his efforts.¹⁷⁶ As the Court previously suggested, Congress delegated the Secretary “virtually unlimited discretion” in conducting the Census.¹⁷⁷

The Census Bureau’s work is particularly specialized and complex. The Bureau agonizes over the questionnaire’s most intricate details, subjecting each editorial change to multiple layers of vetting for months before sending it out.¹⁷⁸ The Bureau pre-tests any new question repeatedly and rigorously before adding it to the questionnaire.¹⁷⁹ Reflecting this practice, the governing statute requires the Secretary to submit a report to Congress at least three years before the census date identifying the subjects of the questions to be included on the questionnaire and to provide the questions themselves two years before.¹⁸⁰ Further, the statute requires the Bureau to submit an additional report if new circumstances exist which necessitate that the questionnaire be modified.¹⁸¹ Thus to add new questions to the 2020 Census questionnaire, the Secretary needed to find and report to Congress any “new circumstances . . . which necessitate” the change by 2018.¹⁸²

The case arose because Secretary Ross, shortly after taking office in 2017, began agitating for a question about citizenship on the questionnaire for the 2020 Census.¹⁸³ The principal census forms had included no such inquiry since 1950 because of the Census Bureau’s concerns that the question would lower the response rates in immigrant communities by discouraging both legal and illegal immigrants from responding.¹⁸⁴ Risking such a reduction in the response rate conflicted with the Bureau’s mandate to count every person. From the outset, the Census Bureau strongly opposed including a citizenship question on the 2020 questionnaire.¹⁸⁵

The Census Bureau’s reports to Congress in 2017 and 2018 did not include a citizenship question. Presumably to show that new circumstances necessitated the question and to meet other legal requirements,¹⁸⁶ the Secretary instructed his subordinates to persuade the Department of Justice (DOJ) to request that a citizenship question be added.¹⁸⁷ They attempted to do so, fabricating for DOJ’s use the cover story that the question was needed to enforce the Voting Rights Act (VRA). DOJ rebuffed the entreaty and referred the Department of Commerce to the Department of Homeland Security. Homeland Security bounced the request back to DOJ. After substantial wrangling at the staff level, as a workaround Secretary Ross directly asked the Attorney General to ask him to include the question. The Attorney General agreed.¹⁸⁸

The Justice Department thereupon made the request, claiming that the information was critical to VRA enforcement.¹⁸⁹ The resulting letter did not explain how the Justice Department, without the benefit of these critical data from the 1950s on, had managed to enforce the VRA for the nearly fifty-five years of its existence. In fact, the Acting Assistant Attorney General for the Civil Rights Division, who ghost-wrote the letter, testified by deposition that citizenship data was in fact not necessary for enforcement of the VRA.¹⁹⁰

Having procured the desired request, Secretary Ross then overruled the strong objections of the Census Bureau and ordered that the question be added.¹⁹¹ The memo supporting this Order relied on the solicited Justice Department request, without so much as hinting at its Commerce Department parentage.¹⁹²

2. The lawsuits and the record

The ensuing lawsuits were consolidated before Judge Jesse Furman in the Southern District of New York as New York v. Department of Commerce. The suits claimed that the addition of the question was arbitrary and capricious under the Administrative Procedure Act, violated the Bureau’s statutory and constitutional duties in implementing the Census, and reflected invidious discrimination.¹⁹³

When a government agency is sued under the Administrative Procedure Act, it must submit the “whole record” of materials on which its decision was based.¹⁹⁴ The Commerce Department initially provided an anemic administrative record that included little more than the solicited Justice Department letter asking Commerce to include the question to facilitate enforcement of the VRA, plus Census Bureau memos generated by the request, and Secretary Ross’s decision memo accommodating the Justice Department.¹⁹⁵ Ross, in fact, doubled (or tripled) down on this false explanation. In sworn testimony before three Congressional committees, he repeated the story that Commerce had included the citizenship question in response to the Justice Department’s request for citizenship data to assist in VRA enforcement.¹⁹⁶ Indeed, he maintained that he was “responding solely to [the] Department of Justice’s request.”¹⁹⁷

In addition to being skimpy, the record the Commerce Department initially submitted left the misleading impression that the request for a citizenship question originated with the DOJ. On its own initiative, the Government supplemented the administrative record to include a one-page memo from the Secretary admitting he wanted to include a citizenship question before DOJ asked for it and that the Department of Commerce asked the DOJ to make the request.¹⁹⁸ It is reasonable to infer that the DOJ attorneys insisted on this disclosure upon entering the case.

Ross’s new memorandum still claimed that the DOJ wanted “improved data about citizen voting-age population for purposes of enforcing” the VRA.¹⁹⁹ While other Census Bureau reviews, in particular the American Community Survey,²⁰⁰ collected citizenship data, Ross stated they were not adequate for multiple reasons.²⁰¹

Secretary Ross’s decision memorandum purported to consider three options to obtain the data for DOJ—(1) continue to collect information in the American Community survey and develop a model to estimate citizenship at a more granular level; (2) include the citizenship question on the decennial census; or (3) use administrative records from other agencies, such as the Social Security Administration, to provide DOJ the citizenship data it ostensibly needed.²⁰² The Census Bureau recommended the third option “because the Bureau has long used administrative records to supplement and improve census data.”²⁰³ The Secretary rejected that option because, he stated, administrative records were missing for 10 percent of the population.²⁰⁴ Citing letters and conversations—rather than statistical studies and precedents—the Secretary found that a fourth option, reinstating the citizenship question and “further enhancing” the administrative data the Bureau had collected, would give DOJ the “‘most complete and accurate’ citizen voting-age population data in response to its request.”²⁰⁵

The memo reported that the Secretary had “carefully considered” the possibility that a citizenship question would depress the response rate in minority populations, as the Bureau strenuously argued, but—again, without citing any analysis comparable to the Bureau’s—the Secretary rejected the Bureau’s position because the empirical evidence was supposedly limited and uncertain.²⁰⁶ The Secretary concluded that “the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate.”²⁰⁷

3. The district court decision

The district court, concerned that the memo was a charade and that the record was incomplete, ordered the Government to supplement the administrative record and granted extra-record discovery, including a deposition of Secretary Ross.²⁰⁸ The Supreme Court stayed the deposition of Secretary Ross but allowed other discovery to proceed.²⁰⁹

Based on the supplemented administrative record, the district court issued a 177-page opinion granting the Plaintiffs summary judgment on their claim under the Administrative Procedure Act. The court found that Secretary Ross had

failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices—a veritable smorgasbord of classic, clear-cut APA violations.²¹⁰

In addition, the court found that Secretary Ross lied about the reasons for his action and attempted to cover up his lies by submitting a “curated and highly sanitized” administrative record²¹¹ and by excluding any records of his early discussions with other officials (including Trump political operative Steven Bannon and anti-immigration zealot Kris Kobach) regarding the citizenship question.²¹² Further, the court found Ross had initially failed to disclose that the issue arose prior to DOJ’s request.²¹³ Additionally, he had revised his explanation in a manner “plainly intended to downplay the degree to which [he] departed from the process ordinarily used to consider new questions on the census.”²¹⁴ The court also found that the Secretary had an “unalterably closed mind” on the inclusion of a citizenship question, an additional basis for determining that his actions were arbitrary and capricious.²¹⁵ In sum, the court held that the Secretary’s stated rationale for including the citizenship question was pretextual and therefore arbitrary and capricious.²¹⁶

The plaintiffs also brought an equal protection claim, alleging that the Secretary in his official capacity sought a citizenship question to invidiously discriminate against Hispanics and other immigrants by suppressing their response to the Census, producing an undercount that would cause them to receive less than their fair share in the allocation of political power and federal benefits.²¹⁷ Because the Supreme Court had blocked the Plaintiffs’ effort to depose the Secretary, the court found they were unable to establish the requisite intent to discriminate, and he dismissed the claim without prejudice.²¹⁸

4. The Supreme Court Decision—Part 1

Bypassing the court of appeals, the Government appealed directly to the Supreme Court. The Court, mindful of the Bureau’s need to complete the census by the end of 2020, accepted and expedited review.²¹⁹ The Court issued a fractured decision in June 2019 with shifting majorities on different issues. First, the Court assessed whether the conduct was arbitrary and capricious, and then treated the pretext inquiry as a separate issue.

The Chief Justice, joined by Justices Alito, Thomas, Gorsuch, and Kavanaugh, first adopted an approach akin to that in the Travel Ban Case, appearing to accept at face value the Government’s explanation that it had included the citizenship question to assist the DOJ in voting rights cases. Citing Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co., the Court found that the agency’s obligation was to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”²²⁰ The Court then applied a particularly insipid rationality standard. The statute, the Court said, vested the Secretary with discretion regarding what to include in the Census questionnaire. Exercising that authority, he was entitled to override the advice of the Census Bureau regarding the effect of a citizenship question on turnout and to disregard the Bureau’s determination that it could obtain citizenship data through other sources.²²¹ The Secretary’s decision, according to the Chief Justice, was a “paradigmatic example of the type of ‘value-laden decision-making and the weighing of incommensurables under conditions of uncertainty’ to which courts owe deference.”²²²

Justice Breyer’s concurrence and dissent dissected this reasoning, concluding that the “Secretary’s decision to add a citizenship question created a severe risk of harmful consequences”—suppression of minority responses—”yet he did not adequately consider whether the question was necessary or whether it was an appropriate means of achieving his stated goal.”²²³ The Secretary, Justice Breyer stated, “‘failed to consider . . . important aspect[s] of the problem,’ and ‘offered an explanation for [his] decision that runs counter to the evidence,’ all in violation of the APA.”²²⁴ Whether pretextual or not, Justice Breyer said, the Secretary’s decision was arbitrary, capricious, and an abuse of discretion.²²⁵

5. The Supreme Court Decision—Part 2

In the second part of his opinion, the Chief Justice—now joined by Justices Breyer, Ginsburg, Sotomayor, and Kagan—rejected the suspension of skepticism that animated the first part and undertook the analysis that he’d rejected in the Travel Ban Case. The Chief Justice found that Secretary Ross was adamant about adding a citizenship question before accosting any evidence and that the cover story regarding the Justice Department’s need for the data to assist with enforcement of the VRA “seems to have been contrived.”²²⁶ The entire exercise was an elaborate fabrication, from the effort to put the DOJ up to asking for a question on citizenship to the deployment of the fake DOJ rationale in overruling the Census Bureau’s strong recommendation against such a question.

The Government contended that there is nothing wrong with an agency head coming “into office with policy preferences and ideas, discuss[ing] them with affected parties, sound[ing] out other agencies for support, and work[ing] with staff attorneys to substantiate the legal basis for a preferred policy.”²²⁷ The Court agreed but only “to a point.”²²⁸ “Our review is deferential,” the Chief Justice stated, “but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”²²⁹ In other words, the problem was not that the Secretary confronted the issue with preconceived ideas, that he proceeded with an improper purpose, or that he persuaded DOJ to ask for the citizenship question. The problem was that he did not tell the truth, resulting in a “significant mismatch between the decision the Secretary made and the rationale he provided.”²³⁰

Without invoking the arbitrary and capricious standard, the Chief Justice held that lying about the rationale for an administrative determination was impermissible and invalidated the decision to include the question. The Court treated the pretext inquiry as a thing apart from the assessment earlier in the opinion whether the conduct was arbitrary and capricious, rather than a step anterior and integral to that analysis.²³¹

6. The dissent

Justice Thomas’s dissent in the case, joined by Justices Gorsuch and Kavanaugh, suggested that there was no bad faith and that the contrary ruling “[e]cho[es] the din of suspicion and distrust that seems to typify modern discourse.”²³² That position is weak. The Secretary of Commerce had testified before Congress three times under oath that the DOJ had requested the citizenship question, without disclosing that Commerce had asked them to do so. False or misleading testimony shows bad faith,²³³ justifying further inquiry even without the additional evidence of dishonesty reflected in the Secretary’s clumsy cover-up, or in the effort to manufacture new circumstances that might justify such a late amendment to the census questionnaire.

Justice Thomas also argued that pretext was not a basis for ruling under the Administrative Procedure Act. He noted that it was “far from clear” that pretext is a “subset” of arbitrary and capricious review.²³⁴ But even if it was, he opined, “an agency action is not arbitrary or capricious merely because the decisionmaker has other reasons for the decision. . . . [E]ven under respondents’ approach, a showing of pretext could render an agency action arbitrary and capricious only in the infinitesimally small number of cases in which the administrative record establishes that an agency’s stated rationale did not factor at all into the decision.”²³⁵ In fact, the case at hand falls into those small number of cases—the Secretary’s stated rationale did not factor at all into his decision. However, nothing in the majority opinion limited the holding to that scenario. Nor does Justice Thomas say why it is acceptable to conceal the primary rationale for an administrative decision, or even a substantial ground.

7. Effect on the Court’s legitimacy

Even before the Census Case was decided, critics were warning that upholding inclusion of the citizenship question would damage the credibility of the Court. Professor Richard Hasen charged that the Government was asking the Court to “become complicit in a cover-up of discriminatory activity,” and that, if the Court accepted the invitation, “any pretense of the legitimacy of the decision will be gone.”²³⁶ New York Times columnist Linda Greenhouse predicted that the “Trump Administration’s cynical hijacking of the census would have a devastating effect on the integrity of the Supreme Court.”²³⁷ These observations reflected the widely held view that the purpose of including a citizenship question was to cause an undercount of Hispanic voters. Such an undercount would disadvantage them in the allocation of goods and services predicated upon the Census numbers and—because most Hispanics voted Democratic— would skew redistricting in favor of Republicans.²³⁸ Justice Breyer, in dissent, explicitly bared his concern that a decision upholding the Secretary’s action would play poorly in the public arena. He noted that the Secretary’s failures in reaching and explaining his decision, “risked undermining public confidence in the integrity of our democratic system itself.”²³⁹ He worried that a Supreme Court decision validating the Secretary’s actions would rope the Court into that malaise.²⁴⁰

The Court’s decision confounded the predictions, but only partially. Rather than first assessing the dishonesty of the Government’s explanation of its decision, the Court started with a shadow analysis, determining whether the Government’s explanation would have been valid if it had articulated the real reason for the citizenship question, before finding that it did not.²⁴¹ In essence, the Court judged the quality of the Government’s lie. The Court did not merely pretend that the Secretary’s explanations were true; it went so far as to suggest that his judgment on the citizenship question was precisely the kind of “value-laden” policy choice that was lodged in his discretion.²⁴² This suggestion is particularly troubling given the common view that one of those laden values was discrimination against Hispanics in the electoral process.²⁴³

On any measure, the Court’s characterization of the decision as a standard discretionary determination did not accord with reality. As one scholar noted,

The conservative majority found that the evidence before the Secretary could be read to suggest that each of the available alternatives for increasing access to citizenship data for purposes of VRA enforcement “entailed tradeoffs between accuracy and completeneness.” The District Court judge had seen no such trade-offs and illustrated that the addition of the citizenship question would always generate worse results in terms of accuracy and completeness as compared to options that did not rely on such a question.²⁴⁴

The dissent agreed with the district court. Justice Beyer noted that the evidence before the Secretary conclusively established that the addition of the citizenship question would suppress the response rates of immigrants and Hispanics, and that the record refuted all reasoning to the contrary. Likewise, adding the question would negatively affect the accuracy of the census.²⁴⁵

The allegation that the addition of the citizenship question reflected invidious or at least partisan discrimination was another charge in the “everybody knows,” common-sense category. The Secretary’s meeting with Steve Bannon (Trump aide and known immigration foe) which began the discussion of the citizenship question, the clear evidence that the question would cause an undercount, the obvious political advantage to Republicans in undercounting Hispanics, the Secretary’s dishonest cover story for the change—these factors practically compelled the inference that the Administration sought to discriminate against Hispanics.²⁴⁶ The reason this invidious intent was not proven in the litigation was that the Supreme Court blocked the Secretary’s testimony.²⁴⁷

The notion that the Secretary’s decision was the kind of determination committed to his discretion rankled some scholars. Professor Jennifer Chacon noted that,

No administration in recent history has been as clear and transparent about its intent to increase white political power at the expense of communities of color. In light of this fact, the decision to treat Secretary Ross’s decision-making process as presumptively normal and to decline to allow for an exploration of his motives in this case evinces profound naiveté.²⁴⁸

As Professor Chacon points out, the Chief Justice crafted the entire opinion—including the portion on pretext—without mentioning Hispanics or Latinos, or even hinting that the purpose of the citizenship question might have been discriminatory. Professor Chacon criticized the opinion precisely on the ground of verisimilitude, “Chief Justice Roberts writes his entire opinion as if he is living in a parallel universe in which political operatives are not trying to game the system to take advantage of racism and the political divides that racism creates.”²⁴⁹ Similarly, Professor Richard Hasen said that the array of opinions in the case “shows the lengths to which many of the Justices are willing to go to ignore evidence of discriminatory intent and pretext, while cleansing discriminatory taint.”²⁵⁰ Professor Joshua Matz pointed out the Court’s reluctance to say that the Secretary’s “reasons were improper or bigoted; it merely said that his stated reasons were ‘a distraction.’”²⁵¹

The first part of the opinion is willfully blind to both the discriminatory purpose and effect of the citizenship question. This is made even more remarkable by subsequent events that bolstered the evidence of invidious discrimination and raised the threat that more facts showing such discrimination would emerge. When a longtime Republican redistricting strategist died, his daughter inherited his papers and turned them over to counsel for plaintiffs in a gerrymandering case, who were at the same firm as counsel in the Census Case. They found two aspects of those papers probative. First, the strategist wrote that citizenship data could assist in drawing electoral districts based on citizen voting age population (CVAP), which would be “advantageous to Republicans and Non-Hispanic Whites.”²⁵² Second, there was evidence this same strategist ghost-wrote or at least contributed to the bogus DOJ letter “requesting” a citizenship question to help enforce the Voting Rights Act.²⁵³

The plaintiffs in the Census Case moved in the district court for discovery regarding this development and provided a copy of their motion to the Supreme Court.²⁵⁴ The plaintiffs also filed a motion asking the Supreme Court, if it decided for the Secretary, to remand to the district court for the limited purpose of following up on this issue.²⁵⁵ The motion fired the following shot across the bow: “This Court should not bless the Secretary’s decision on this tainted record, under a shadow that the truth will later come to light.”²⁵⁶ Some have surmised²⁵⁷ that the Chief Justice seemingly switched sides in the case at the last minute due to concern about what other information might come out. A decision upholding the citizenship question would have undermined the Court’s legitimacy if additional blockbuster evidence showing invidious discrimination emerged from the yet unplumbed terabytes of the strategist’s files.²⁵⁸ Remarkably, even in light of this evidence, four Justices remained willing to bless the Secretary’s decision.²⁵⁹

The disposition of the case also prompted some cynicism regarding the Court’s commitment to real world judging. The Court remanded the case to the agency, allowing it to try again. As Professor Matz noted at the time,

[the Court] wouldn’t have remanded to the agency, and gone through all the trouble of rejecting every other legal argument at hand, if there were nothing the agency could do to save the challenged decision on remand. It is safe to anticipate that Ross and his lawyers will now offer a battery of reasons in an effort to justify the inclusion of a citizenship question—and that Roberts will be decidedly inclined toward accepting at least one of those reasons as sufﬁcient to support the agency’s decision.²⁶⁰

It is one thing to remand the case for the agency to fix when it has committed a procedural error. But when the agency has given a false reason for its decision, allowing a second chance to explain itself poses the obvious risk that only the explanation of the agency’s actions, not the actual reasons, will change. The agency might simply do a better of job of lying about its reasons for acting.²⁶¹ Professor Matz predicted that “the parties will once again litigate whether his reasons comply with the APA. But now they will do so on a battleground that the Chief has tilted sharply in Ross’s favor—and from which the Chief has removed most of the plaintiffs’ arguments.”²⁶² But before the Chief Justice “dirties his hands upholding Ross’s decision,” Matz declared, “he has required Ross to clean things up a bit, thus ensuring that the citizenship question enjoys a patina of legitimacy when he ﬁnally okays it.”²⁶³

Professor Michael Dorf offered a similar view: “Based on the Travel Ban litigation, there is reason to fear that the SCOTUS will uphold the citizenship question after the administration ‘lawyers it up’ better.”²⁶⁴ The main distinction from the Travel Ban Case, Professor Dorf explained, is that the Court there “never actually found pretext. Here it has. And while an otherwise legitimate decision found to be pretextual should not be forever barred, where only a few months (at most) will pass and the motives remain the same, a new determination to include the citizenship question should be viewed with extreme skepticism.”²⁶⁵

Likewise, Professor Richard Hasen surmised that the Chief Justice was setting the case up for “animus laundering,” or “the ability of a government actor to change the rationale for a government action from a discriminatory one to something more palatable to satisfy further judicial review.”²⁶⁶ These reactions are hardly a vote of confidence in the Court’s commitment to verisimilitude.

Notably, if the Court’s plan was to affirm the Secretary’s next effort, it would have been inconsistent with the subsequent DACA Case. Absent a new, from the ground up decision, the Secretary would have been stuck with his initial rationale. The DACA Case prohibits an after-the-fact rationalization to justify the preformulated decision.²⁶⁷

As it turned out, the census deadlines resolved the issue. The Government did not have time to detoxify its prior explanation of the citizenship question.²⁶⁸ But it was not for want of trying. When the Justice Department said the Government would not seek again to include the citizenship question, the President ordered that the statement be retracted.²⁶⁹ Ultimately, the President had to accept the physical limitations on the ability of the Census Bureau to change the questionnaire. Perhaps the cynical view was wrong, and the Court expected this eventual outcome. But it could not have known for certain.

C. The DACA Case

Unlike the Travel Ban Case and the Census Case, the DACA Case (U.S. Department of Homeland Security v. Regents of Univ. of Cal.)²⁷⁰ does not have a problem with verisimilitude. To the contrary, the decision reinforces the proposition that accurate reasoning is a key element of the inquiry into whether administrative action is arbitrary and capricious. Further, it makes clear that, under the aegis of arbitrary and capricious review, the inquiry into pretext is more common and central to administrative law than the Travel Ban and Census Cases suggest.

1. The DACA program

In 2012, the Obama Administration instituted a program entitled Deferred Action for Childhood Arrivals (DACA), for “certain young people who were brought to this country [illegally] as children” through no fault of their own.²⁷¹ DACA deferred deportation proceedings and allowed these immigrants, known as “Dreamers,” to participate in benefits that were usually limited to citizens.²⁷² In 2017, Attorney General William Sessions advised the Department of Homeland Security that DACA was illegal and should be rescinded.²⁷³ Based on that advice and court rulings against the related program, Deferred Action for Parents of Americans and Lawful Permanent Residents, Acting Secretary Elaine Duke terminated the program, allowing some time to wind down.²⁷⁴ Three district courts enjoined the termination, but one of them stayed its decision for ninety days to allow DHS to provide a fuller explanation for the determination that the programs “lack[ed] statutory and constitutional authority.”²⁷⁵ DHS in the meantime had a new Secretary, Kirstjen Nielsen, who produced another explanation that included grounds her predecessor never addressed. As the Court explained,

despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. . . . By contrast, Secretary Nielsen’s new memorandum offered three ‘separate and independently sufficient reasons’ for the rescission, . . . only the first of which is the conclusion that DACA is illegal.²⁷⁶

2. The Supreme Court opinion

The Government sought certiorari before judgment in all three district court cases which the Court granted, thus bypassing decisions by the courts of appeals.²⁷⁷ The Court held that, “[i]t is a ‘foundational principle of administrative law’ that judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.’”²⁷⁸ The agency could elaborate on or clarify what its original explanation meant, but it could not dream up new justifications. The predicate of this obligation is the agency’s duty to provide reasons for its decisions. The Court would not uphold the rescission based on “impermissible ‘post hoc rationalization.’”²⁷⁹

This rule, the Court found, serves “important values of administrative law.”²⁸⁰ First, requiring a new decision before considering new reasons promotes “‘accountability’ by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority.”²⁸¹ Unless the policy was reissued as new, the old version would be old news. Defending it with a new rationale could fly under the radar, preventing meaningful public accountability.²⁸² Second, requiring a new decision “instills confidence that the reasons given are not simply ‘convenient litigating position[s].’”²⁸³ And third, requiring that the explanation match the action allows effective judicial review, rather than making the courts and the litigants “chase a moving target” of justifications.²⁸⁴ Because DHS’s new reasons for rescinding DACA were different and independent from the prior analysis but the policy was not reissued as new, the rescission was arbitrary and capricious.²⁸⁵

The Court’s reasoning applies equally well to the determination of whether an agency’s rationale for its actions was a pretext. Whether an agency invokes a pretextual explanation at the time it first announces its decision or later, the explanation in either event is a “post-hoc rationalization”: a rationale conjured up for a decision already made on other grounds. Pretext, as a subset of “post-hoc rationalization,” evades accountability by obstructing an effective response to the actual grounds for the decision. It undermines confidence in the decision because the explanation in fact is not the actual basis for the determination. And it frustrates judicial review, as well as public accountability, because the court and the public cannot readily assess the genuine rationale for the decision.²⁸⁶ Like pretext, the subsequent explanation can be a subterfuge, a false explanation presented as the motivating rationale for the decision. Yet the post hoc rationalization is treated as a subset of the arbitrary and capricious inquiry, while pretext is its own category, isolated and separately determined—if the Census Case is the guide—only after the Court determines that the bogus explanation would not be arbitrary and capricious if it were true.

There is a potential distinction between the Census Case and the DACA Case, but it ultimately breaks down. The subsequent justifications for the rescission of DACA were real, in that they could have been considered legitimate policy explanations if offered at the time of the original decision. By contrast, in the Census Case, the justification was entirely fabricated—a made-up story with no basis in fact. Even so, this duplicity was not essential to a finding of pretext. The explanation was pretextual because it was not the actual grounds for the decision, just as the post hoc rationalization in the DACA Case was pretextual.²⁸⁷

Unlike the Travel Ban Case and the Census Case, the Court in the DACA Case addressed whether the administrative actions reflected an invidious purpose. As in those cases, in the DACA Case the Court continued to shield the Administration from claims of bias. To proceed with a claim of animus, the plaintiffs had to raise “a plausible inference that an ‘invidious discriminatory purpose was a motivating factor ‘in the relevant decision.²⁸⁸ The respondents argued that three factors supported such an inference: (1) the disparate impact of the decision rescinding DACA on Mexican immigrants, (2) statements by President Trump, and (3) the unusual history behind the rescission. The Court found that none of these factors, alone or in combination, supported an inference of bias. The Court found it unsurprising that because Latinos were the largest portion of unauthorized immigrants, they were most affected by the rescission. That logic is flawed. It is true that one could not rescind DACA without having a disparate impact on Latinos. But it is likewise true that rescinding DACA is a direct and convenient way to effect such discrimination. As Justice Sotomayor stated in dissent, “[T]he impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail.”²⁸⁹ The Court also discounted those statements, finding that they were remote and in different contexts. But those statements did not need to be near in time or relate directly to DACA to suggest prejudice towards Latinos. Indeed, from his first trip down the escalator at Trump Tower, President Trump had made no secret of his views regarding Latino immigrants, which the respondents alleged “were an animating force behind the rescission of DACA.”²⁹⁰ There was no reason to believe the President had mellowed. Third, the Court found nothing unusual in the procedural history of the rescission. As Justice Sotomayor pointed out, the Administration cited its commitment to maintaining DACA just three months before rescinding it, without considering important aspects of the termination.²⁹¹

The factors may not conclusively establish animus, but to find that they cannot support a plausible inference reflects a particularly “blinkered approach,” in Justice Sotomayor’s words, a departure from the common sense that otherwise runs through the opinion.²⁹²

Justice Kavanaugh’s dissent also warrants brief mention. He argued that the arbitrary and capriciousness standard “simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.”²⁹³ The only question in his view was whether the second memorandum explained the decision. The post hoc rule prevented lawyers from thinking up new explanations during litigation over agency actions. But outside of the context of administrative adjudication, it had never prevented the agency from supplementing its explanation. As Justice Kavanaugh noted, the post hoc justification doctrine:

…is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule directed at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.²⁹⁴

Justice Kavanaugh is correct that the application of the post hoc rule in the DACA Case was novel. The novelty could reflect—as Justice Thomas charged in his dissent²⁹⁵—an effort to avoid a distasteful result. But it also may reflect an enhancement of the reason-giving requirement, migrating pretext into the arbitrary and capriciousness standard.

3. Effect on the Court’s legitimacy

The DACA Case had little effect on the legitimacy of the Court. Verisimilitude is essentially a one-way ratchet; deciding a case largely consistent with reality is unlikely to generate much comment. We expect the Court to rule on cases in accord with the facts and to insist on reasonable explanations for administrative actions. Meeting that expectation is unremarkable. It is the departures from verisimilitude that invite notoriety and that spur the observations and recommendations offered here.

Prior to the oral argument in the DACA Case, columnist Linda Greenhouse opined on the significance of the case. The decision would be important, she said, “in defining the court’s relationship to a president who behaves as if he has the Supreme Court in his pocket.” In particular, “[i]t [would] indicate whether the Roberts court—more specifically, the chief justice himself—[would] continue to insist on believable explanations from an administration that often appears incapable of giving one.”²⁹⁶

In fact, the Court did insist on a reasoned explanation at the time of the decision. A made-up explanation—contemporaneously or post hoc—will not suffice. The decision puts the executive branch on notice that explanations of administrative actions must correspond with reality, which in turn makes it more likely that decisions reviewing those actions also achieve verisimilitude.

IV. Reforming Doctrines Of Deference

As the DACA Case suggests, the judicial doctrines and inclinations that produced the Travel Ban and Census Cases need not lead the Court to adopt, accept, or ignore bad administrative conduct. Modest shifts could prevent the kind of delusive results that can undermine the legitimacy of the Court.

A. National Security and Pretext

To justify its hands-off approach in the Travel Ban Case, the Court invoked United States v. Curtiss-Wright Export Co.,²⁹⁷ affording the highest level of deference to the executive branch on national security, and Kleindienst v. Mandel, which refused to look behind visa decisions.²⁹⁸ There are strong reasons for courts to be circumspect in matters of national security and foreign policy, and to a lesser degree, immigration. As the Court stated in Curtiss-Wright, in foreign affairs the President must have “a degree of discretion and freedom” that “would not be admissible were domestic affairs alone involved.”²⁹⁹ Compared to Congress—and for that matter, the judiciary—the President “has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials.”³⁰⁰ In addition, speed, secrecy, and uniformity are important in national security-related decisions, and those determinations can entail significant risks.³⁰¹ In addition, because the Constitution vests the executive branch with the predominant role in managing national security and foreign affairs, the Court in Curtiss-Wright found that the other branches have a duty to afford comity to the exercise of executive branch prerogatives.³⁰²

The Court may have been concerned in the Travel Ban Case that a finding of animus would forever disable a president from responding to a threat if they made any biased statements in the past. There are several responses to this concern. First, the Travel Ban Case did not involve remote, ambiguous statements. President Trump plainly said what he intended to do, and promptly did it. Further, the President implied—and the Court concluded— that the elaborate administrative mechanism the President’s aides designed to show that the third iteration of the Travel Ban was a bona fide response to a terrorist threat was pretextual. The pretext bolstered the conclusion that the animus continued. Second, if there were any doubt on that score, the Court could have adopted Justice Breyer’s approach and put the government’s waiver procedures to the test on remand.³⁰³ Third, if the Court was in fact concerned that the taint from the President’s statements would be indelible, it should have said so. Candor about this implication of a ruling against the President would have been preferable to wholesale abdication of judicial review.

The asserted national security risks in the Travel Ban Case may have also put the Court in a difficult position in another respect. Suppose the Court had upheld the injunction against enforcement of the Travel Ban and then a Muslim individual from one of the banned countries had entered the United States and attacked a major commercial center. There is little doubt that President Trump would have blamed the Court—he already had explicitly said that blood would be on the district court judge’s hands if there was an attack.³⁰⁴ In the event that such an attack occurred and was arguably traceable to the Court’s decision—and even, perhaps, if it were not—the resulting uproar could have threatened the Court’s legitimacy. Whether the Justices consciously recognized or articulated this factor, it was potentially significant, particularly for the Chief Justice, who has a special responsibility for the Court’s institutional wellbeing.

Nonetheless, though it may be unrealistic to expect the Justices to ignore this kind of concern, it should not receive substantial weight in decision-making. The same argument could apply to many, if not most, national security decisions. Indeed, the Korematsu majority likely confronted the same fear. The Court would have been excoriated if it had rejected the internment of Japanese Americans and one of the freed internees had then committed a destructive act of sabotage. To let that concern dictate the Court’s response, however, would be to abandon judicial responsibility, as suggested by the near-universal condemnation of Korematsu in the ensuing years. Moreover, the stakes may be just as high in many domestic cases as in cases implicating foreign affairs and national security—for example, cases addressing domestic terrorism, privacy, or religious liberty—but that does not excuse the Court from its frontline responsibility to make difficult decisions.

The Chief Justice in the Travel Ban Case bristled at the dissent’s invocation of Korematsu as an apt parallel. Aside from overruling Korematsu, the Chief Justice distinguished it on the grounds that the actions there occurred in the United States, involved American citizens, and were overtly based on race whereas the Travel Ban involved foreigners in foreign territory and was not explicitly based on an invidious classification. But the rights the Court addressed in the Travel Ban Case were those of domestic U.S. relatives of foreign individuals denied entry into the United States, not those of the foreigners.³⁰⁵ The Chief Justice’s rationale would view Korematsu as correctly decided if the criterion for detention had been facially neutral—perhaps suspicion of pro-Japan sympathies—but had been enforced by indiscriminately rounding up people of Japanese descent. Facial neutrality would have provided little comfort to the individuals incarcerated in internment camps based on their race, and probably would not have saved the case from the register of the all-time worst Supreme Court opinions.³⁰⁶ In short, these ostensible distinctions do not differentiate the abdication of judicial review in the Travel Ban Case from the abdication in Korematsu.

Additionally, there are other challenges to national security exceptionalism, at least insofar as it requires judges to accept obvious untruths as fact.³⁰⁷ Not every case involving foreign affairs requires specialized expertise. And judges have no less expertise in foreign affairs than they have in many administrative matters they tackle, from telecommunications policy to molecular genetics. In addition, while “[s]ome national security decisions need to be shrouded in secrecy . . . others do not. Some might require great haste, others do not. At the same time, many ordinary ‘domestic’ issues require secrecy or haste, and yet the Supreme Court has never accepted blanket claims of deference to the president for all domestic policymaking.”³⁰⁸

In addition, as Justice Sotomayor correctly observed in the Travel Ban Case, the Court has recognized limits regarding its deference to the executive branch in national security. In Hamdi v. Rumsfeld, for example, the Court rejected the Government’s claim that extending “the full protection[] that accompan[ies] challenges to detentions in other settings” posed a “threat to military operations.”³⁰⁹ “We have long since made clear,” Justice O’Connor wrote for the plurality, “that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”³¹⁰ Likewise, in Rasul v. Bush,³¹¹ Hamdan v. Rumsfeld,³¹² and Boumediene v. Bush³¹³—all relating to treatment of combatants in the war on terror—the Court handled the cases very much like domestic matters.³¹⁴

Excluding national security issues from meaningful judicial oversight does not allow consideration of factors such as the degree of secrecy and expertise required. And it does not permit assessment of pretext, even though effective judicial review demands a truthful explanation of the government’s policy. The President should have no claim to comity when he is lying about the reasons for his conduct. As Justice Kennedy observed, an “affirmative showing of bad faith” vitiates the deference to which Executive action would otherwise be entitled.³¹⁵

The concern that allowing a determination of pretext would intrude on the President’s foreign affairs power is less dire than its expositors argue. No one suggests that courts have unfettered or even broad discretion to launch accusatory inquiries. There must be some antecedent showing that indicates falsity or bad faith to justify an inquiry into pretext. In such an inquiry, moreover, the Court is not limited to determining whether foreign policy trumps constitutional principles or vice-versa, or to overturning or sustaining Presidential initiatives. The Court can require the President to take a second look, factor in certain values, articulate their reasoning, and to provide evidence to support it. These alternatives may often be enough to redirect the decision or otherwise to protect individual rights.
To be sure, when the issue is whether the President’s explanation is pretextual, the inquiry itself could potentially undermine comity regardless of how it turns out. Even if the President’s explanation is pretextual, inquiry into that issue could theoretically threaten the secrecy or effectiveness of a foreign policy measure. But potential explanations of agency action are no more plausible or less threatening to liberty when they have a foreign policy tinge. History reveals many instances where false statements about national security undermined the domestic and foreign policy of the United States and the constitutional rights of its citizens, and few, if any, where judicial inquiry into those statements and actions did so.

As for Kleindienst, there is no reason why different principles should apply to visa decisions. Insofar as foreign policy and national security considerations present a compelling argument against judicial interference in a particular case, then Courts should defer to the extent necessary and no more, with regard to both to visas and other foreign affairs functions of the executive. Otherwise, there is no good reason to depart from the normal conventions of judicial review. The Court’s responsibility to protect our foundational principles does not flag even when the attack on them comes clothed in the garb of foreign policy.³¹⁶

B. Undue Reticence Regarding Pretext: The Reason-Giving Requirement

Examination of whether the government’s justifications for its actions are pretextual generally should occur at or near the threshold of judicial review because, as the Court acknowledged in the Census and DACA Cases, the requirement to give reasons for executive actions is fundamental to administrative law. Inherent in that obligation is the requirement that the reasons be truthful. As one scholar notes, “the rationalist reason-giving requirement provides external checks on agency power, constrains the internal decisionmaking processes, demonstrates respect for governed subjects, and enhances the legitimacy of agency decisions by rationalizing them.”³¹⁷ The requirement cannot perform these functions if the reasons are contrived. Based on the explanation the agency provides, the reviewing court assesses whether “[a] decision [was] based on a consideration of the relevant factors and whether there ha[s] been a clear error of judgment.”³¹⁸ Again, false reasons impair this function.

Administrative law scholars have developed a detailed and systematized approach that places reason-giving at the core of agencies’ function. Requiring reasoned explanation of agency actions, this theory posits, “facilitates external checks on the exercise of agency power” by promoting political accountability and enabling judicial review, shaping the “internal decisionmaking dynamics of agencies in ways that tend to cabin administrative discretion,” lending “moral force” to agency decisions based on demonstrated “respect for the governed subject,” and legitimating “the exercise of administrative power.”³¹⁹ As Professor Jerry Mashaw notes, “the legitimacy of bureaucratic action resides in its promise to exercise power on the basis of knowledge,”³²⁰ and giving reasons demonstrates that it has done so—unless the reasons given are not the actual reasons for the decisions under review. In that circumstance, giving reasons serves principally to mislead.

A pretextual explanation does not merely obstruct effective judicial review. It defeats one of the fundamental purposes of requiring reasons: curbing abuse of executive authority. A bogus explanation is, if anything, worse than no explanation. Beyond misdirecting and frustrating judicial review and public accountability, the falsity can relieve the agency from its obligation to carefully consider every step it takes. And letting the Executive get away with a false explanation can embolden officials to perpetrate more abuses of power in the future.

State Farm deemed agency rules arbitrary and capricious if the agency relies on factors that Congress has not intended it to consider, fails to consider important aspects of the problem, or offers an explanation that is implausible or inconsistent with the evidence before the agency.³²¹ In theory, an agency’s explanation of its conduct could appear to pass these tests and still be pretextual. The agency could cite the right factors, consider the full scope of the problem, and offer a plausible explanation consistent with the evidence, but decide the matter on entirely different grounds. However detailed and believable, the false explanation is just that—false—and false explanations frustrate the reason-giving requirement essential both to agency decision-making and to judicial review of the decisions. They defeat transparency. They prevent the public and reviewing courts from knowing the agency’s true objectives and evaluating both the legitimacy of those objectives as well as the appropriateness of the method chosen to reach them. It is unlikely that the use of pretext is harmless. Agencies generally resort to pretext when they have considered something inappropriate or do not want to consider something important. And pretextual explanations often rely on made-up evidence.

1. Reason-giving and the Travel Ban Case.

In the Travel Ban Case, the Court excused the Government from meeting the reason-giving requirement. As far as the Court was concerned, the Government could have given good reasons, no reasons, or false reasons for its actions. Because the Court would not look behind the Government’s explanation, any of these options would have carried the day, defeating the rationalist purpose of requiring an explanation. Judicial review provided no external check on the exercise of executive power, did not promote public accountability, did not shape the executive’s behavior—at least not helpfully—and lent no moral force to the Executive decisions.³²² Further, letting a pretextual rationale stand undermined the Court’s legitimacy.

2. Reason-giving and the Census Case.

a. Consideration of pretext

The Census Case at least considered whether pretext existed, but its initial suspension of disbelief in analyzing the Secretary’s decisions compromised the value of the analysis. Treating the analysis of pretext as a wholly different inquiry from the determination of whether the action is arbitrary and capricious ignores the unity of purpose that underlay the government’s actions. There were not two decision-makers in the Census Case, nor two separate decisions. One person, the Secretary, made the one relevant decision: to include a citizenship question in the census survey. He made it for a self-evidently improper reason that he attempted to conceal. As a practical matter, the decision could not be both non-arbitrary and pretextual. Bifurcating the inquiry as the Court did and examining the Secretary’s decision as if it were real, deemed it the kind of value-laden judgment properly vested in his discretion and inappropriately dignified the sham exercise he undertook. Determining whether the Secretary’s explanation was pretextual should have been a threshold step in the inquiry into whether his actions were arbitrary and capricious.³²³ As his answers were pretextual, the Secretary did not satisfy the reason-giving requirement of the arbitrary and capricious standard. The lie rendered his conduct arbitrary and capricious. Whether he was a good liar is irrelevant.

On the Court’s approach, if the explanation for the Secretary’s action was internally consistent and logical—in other words, if the lie was coherent and effective—then the decision was not arbitrary and capricious. On the Court’s approach, only after making this determination and if faced with convincing evidence of bad faith would it be appropriate to examine whether the reasons given are pretextual. This topsy-turvy sequencing sacrifices the advantages of leading with pretext analysis and does not alleviate the Court’s concerns with the line of inquiry.

To invariably consider the merits of the Government’s explanation before ascertaining whether it is pretextual potentially forgoes insights into the merits that assessing the truth of the explanation can convey.³²⁴ In other contexts—for example, in determining whether a private actor’s conduct is discriminatory—a pretextual explanation is grounds for inferring intentional discrimination.³²⁵ In the context of administrative action, a finding of pretext could permit inferences about the validity of the actual bases for the government’s decision.

b. The Court’s concerns regarding pretext

i. Extra-record discovery

Regarding the Court’s concerns about the inquiry into pretext, the Chief Justice worried—and the dissent was particularly troubled—that litigants would use allegations of pretext to conduct discovery outside the administrative record, including taking the depositions of government officials.³²⁶ Courts ordinarily are limited to “evaluating the agency’s contemporaneous explanation in light of the existing administrative record.”³²⁷ The parties and the court usually address the adequacy of the record at the outset of the case if or when the plaintiffs challenge whether it constitutes the “full administrative record before the [decision-maker] at the time he made the decision.”³²⁸ In some cases, the government voluntarily supplements the record, as it did in the Census Case. In other cases, the court orders it to do so or remands to the agency. An order requiring discovery is unusual but does not depend on finding or even suspecting pretext.³²⁹ It turns on bad faith or improper conduct, which are broader concepts. Bad faith, for example, could reflect a desire to conceal certain issues, such as conflicts of interest or destruction of evidence. In addition, discovery should not be a punishment for bad faith or improper conduct. The discovery must be necessary to acquiring relevant facts that are not in the record but should be, or that reflect on the truthfulness of the record evidence.
Nor is discovery always necessary to show pretext. Although the district court in the Census Case ordered discovery, it made a point of basing its finding of pretext solely on the record as supplemented by the government. The court did not use the materials gathered in extra-record discovery.³³⁰ In any event, the Census Case did not invent the standard for ordering discovery beyond the administrative record. The standard originated in Overton Park in 1974.³³¹ The Census Case merely applied it.³³²
The issue, then, is not so much with the standard for pretext as with discovery beyond the administrative record. As the Census Case demonstrates, nothing prevents the Court from enforcing the ban on pretextual explanations of agency conduct without substantially expanding the availability of extra-record discovery or consulting that discovery to draw its conclusions. In fact, nothing in the Census Case effected such an expansion. Discovery is appropriate where there is a showing of bad faith or improper conduct and the record is insufficient to identify the basis of the government’s decision.

ii. Political reasons for administrative action

A second source of the Chief Justice’s reluctance is reflected in the holding that courts “may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons,” in particular, “political considerations” or deference to “an Administration’s priorities.”³³³ The Chief Justice observed that administrative decisions are “routinely informed by considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others).”³³⁴ All of this is true but irrelevant. The pretext holding in the Census Case does not require officials to plumb their psyches and put on the record every potential influence on their decision, nor does the pretext holding turn on what explanations were permissible. The result, rather, turned on the Secretary’s false statements about his rationale. The problem was not the substance of his decision, but rather the transparency of his decision-making. Nothing in the discussion of pretext in the opinion precludes consideration of political factors in agency decisions. The decision simply dictates that the government not falsify its reasons.

iii. Intrusiveness

Third, as noted, the Chief Justice was concerned that inquiry into pretext meant inquiry into executive motivation, and “inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of government and should normally be avoided.”³³⁵ However, the standard for such discovery does not depend on pretext. Where there is a credible inference of invidious discrimination, there is little dispute that extra-record discovery is appropriate. And such claims of discrimination will often accompany allegations that the stated reasons for the government’s actions were pretextual. Thus there will frequently be grounds other than pretext to inquire into motive.³³⁶

In any event, the pretext inquiry is no more intrusive than determining that an administrative action is arbitrary and capricious. The inquiry under the arbitrary and capricious standard requires the Court to engage in a “searching and careful” review to determine whether the “decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”³³⁷ Ultimately, the Court assesses whether the agency’s determination was so far outside the realm of reasoned decision-making as to be arbitrary—that is, unreasoned and capricious—erratic or based on whim.³³⁸

The conclusion of the inquiry, a finding that an agency decision is implausible, outside the bounds of reasoned decision-making, incomplete, misdirected, or whimsical is hardly less harsh or intrusive on agency prerogatives than a determination that the agency offered a pretextual explanation for its action. Indeed, each of those findings often shades into or is a proxy for a determination of pretext.³³⁹ The Chief Justice reiterated the concern about extra-record discovery, but such concern, as noted above, is largely a separate question.³⁴⁰

c. Inquiry into Executive intent

In part, the Court’s reticence about examining motivation may reflect a generalized reluctance to assess or impugn the intent of Executive Branch actors.³⁴¹ This reluctance is both misdirected and overly constraining. Determining regulators’ intent is a common inquiry, whether or not pretext is at issue. In cases involving the Dormant Commerce Clause, for example, the law requires courts to analyze state government actors’ motives, including actors in the state’s executive branch.³⁴² In many circumstances, equal protection law has evolved from focusing on impact to requiring discriminatory intent.³⁴³ In First Amendment jurisprudence, particularly cases dealing with religion, the Court recognizes “the intuitive importance of official purpose to the realization of Establishment Clause values.”³⁴⁴ Further, in determining whether a display of the Ten Commandments in a courthouse had a religious or secular purpose, the Court looked at “readily discoverable fact[s]” to understand the “official objective.”³⁴⁵ With regard to the First Amendment protection for freedom of speech, much of the jurisprudence, as then-Professor Elena Kagan pointed out, involves the application of reliable proxies that reveal the intent behind particular restrictions on speech.³⁴⁶ In her words, “the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting.”³⁴⁷

The former test in abortion cases announced in Planned Parenthood v. Casey similarly evaluates whether a regulation “has the purpose or effect of placing a substantial obstacle in the path” of a woman seeking an abortion, although subsequent cases have focused more on effects of the regulation.³⁴⁸

As Professor Kathleen Shaw points out, courts also focus directly on intent in some cases under the Administrative Procedure Act. In particular, the D.C. Circuit has held that “agencies proceeding by informal rulemaking should maintain minds open to whatever insights and comments produced by notice under [notice and comment procedures] may generate.”³⁴⁹ Thus, a litigant can set aside regulatory action or disqualify the regulator if she can make a “clear and convincing” showing that the regulator “has an unalterably closed mind on matters critical to the disposition of the proceeding.”³⁵⁰ When making these judgments, courts necessarily consider the prior statements and the contemporaneous mental state of the regulators.

However, for most administrative cases there is no reason to explore the regulator’s mental state. In determining whether an EPA regulation improperly allows pollution in excess of a statutory limit, the EPA’s motive in promulgating the regulation is generally irrelevant. The question is whether the allowable emissions are above or below the statutory specification. Still, if the plaintiff makes a preliminary showing of bad faith or improper conduct, inquiry into intent may be appropriate because the public is entitled to administrative proceedings untainted by invidious or venal considerations.

For the most part there is little discussion in these cases of whether a different analysis is required in determining the intent of the President as compared with other actors in the executive branch. In some respects, it is easier to determine the intent of one individual than that of a multi-person commission. But determining the intent of the President presents some potentially unique issues. One is the sheer number of Presidential statements, which fill multiple volumes every year. The executive branch speaks constantly in the name of the President, and the President is likely not even aware of many, if not most, of the statements. It is fair to presume, though, that the President has hired aides who understand his positions, reflect his views, and protect his interests. In any event, concern that statements do not actually reflect the President’s mental state are not substantial where—as in the Travel Ban Case—the President himself utters the words in question. Further, the problem of cherry-picking among the vast volume of presidential statements, even those he personally makes, is not a problem where the President repeats the statements over and over, tweets them, calls them into television and radio talk shows, and links them to an articulated priority of the Administration. Insofar as the President’s statements contradict those of the Justice or State Departments—well, he’s the boss and his statements should control. All-in-all, the volume of the President’s statements cannot give him a pass. Otherwise the more he says, the less it counts.

The means of discerning the President’s intent should be familiar. As an incident of the human condition, each of us continually assesses the intentions and motives of the individuals we encounter. Our confidence in our ability to discern intent is sufficiently strong that we allow juries of 12 ordinary citizens to determine a defendant’s intent in circumstances where their liberty and the public’s safety may be at stake, even in the face of the defendant’s outright denial. We likewise expect judges—when they are the finders of fact—to assess the defendant’s mental state, detect when witnesses are uncertain or untruthful, tell when the asserted reasons for an individual’s actions are not credible, and understand when a witness or party engages in puffery or malevolent deception.³⁵¹ Further, both judge and jury use the same tools today that they used 100 years ago: observation of demeanor, context, prior statements, plausibility, and a myriad of other situation-specific cues. Of course, the observation of the President is generally through an electronic medium, such as television, but courts and the public still can draw conclusions about the President’s intent.

In trials, courts often instruct jurors that they can infer the defendant’s intent to achieve the natural and probable consequences of his acts.³⁵² Moreover, jurors understand that they can use a defendant’s voluntary statements—both pre- and post-arrest—against them.³⁵³ Normally, a defendant’s stated intent to do an act would be highly probative evidence that they intended to do it. A jury would have no difficulty discerning the intent of a corporate chief executive who announced she would not hire any African Americans and then barred all applicants with addresses in the city’s predominantly African American neighborhoods. Using their common sense, the jurors would compare the prior statements with the subsequent conduct and likely conclude that the new chief executive laid out what she intended to do and then did it. The exercise requires no elaborate reasoning or leaps of faith.

These techniques are just as valid in assessing the intent of government actors including the President. Even in Village of Arlington Heights v. Metropolitan Housing Dev. Corp, where the Court found the evidence insufficient to prove racial animus, the Court recognized that “contemporary statements by members of the decisionmaking body” may be “highly relevant” to the inquiry.³⁵⁴ President Trump’s statements and conduct on the Travel Ban are a case in point. He was sometimes coy but by and large unapologetically transparent about his intent.

Instead of taking account of this “highly relevant” evidence in the Travel Ban Cases, the Court accepted the facial national security justification as gospel and precluded any inquiry into whether, as seemed likely, it was pretext. That approach defies common sense. Indeed, a jury would likely consider it bizarre if it were told that, when considering whether the defendant discriminated, it could not consider their recently stated intention to discriminate against the people they were now targeting.

The inquiry in the Census Case involved the intent of the Secretary of Commerce rather than the President but presents many of the same issues. Secretary Ross offered a public explanation for including a citizenship question in the nationwide survey, but his department’s internal documents revealed that the proffered explanation was a post hoc fabrication for a decision made on political, and probably invidious, grounds. This kind of evidence in the Census Case is what courts have long used to discern intent, comparing the witness’s statements to the written record and to the testimony of other witnesses. Yet the Supreme Court’s limited treatment of the evidence in the Census Case oozed reluctance and avoided drawing conclusions.

One objection to insisting that courts consider this type of evidence is that those courts regularly exclude probative evidence at trial and instruct juries to disregard evidence that jurors might see as highly probative to their decisions.³⁵⁵ But there are important distinctions between such situations and the refusal to consider the President’s statements in the Travel Ban Case. First, courts exclude evidence because of a problem intrinsic to the particular evidence at issue; for example, it is untrustworthy, or unduly prejudicial, or it was obtained in violation of a party’s constitutional rights.³⁵⁶ There is no such problem with the President’s prior statements. In a trial against him or the government, the statements would come into evidence as admissions of a party opponent.³⁵⁷ No one disputes that the President made the statements, that they reflect his views, and that they address Muslim immigration. The Court essentially acknowledges those points. It just refuses to look behind the President’s official explanation of the Travel Ban because of his role in immigration and national security. Indeed, under the Court’s logic, even if the President had sworn an oath that the Travel Ban reflected anti-Muslim bias, it would not have mattered so long as he also offered some facially neutral justification plausibly related to national security.

Another possible objection is that the Court need not look behind a facially adequate explanation because the President’s real intent is irrelevant. Some might argue that if the order articulates a legitimate rationale and the process by which the order was promulgated guarantees appropriate review of the rationale, it should not matter whether the President had some different intent, even if it was malevolent. But the conduct of the President is at issue—the occupant of the highest office in the land who acts on behalf of the United States. For a President to act with an invidious purpose is inconsistent with the nation’s values.³⁵⁸ Discrimination based on religion is invidious. It offends one of our most fundamental founding principles. That matters to the legitimacy of the government as a whole and of the courts reviewing the President’s actions.

The Court’s reluctance to inquire into intent led it to accept without question the rationale set forth in the Government’s briefs, rather than the rationale found in the President’s statements, ultimately leading the Court into error in the Travel Ban Cases. Insofar as that reluctance steered the Court to the what-if inquiry in the Census Case, it steered the Court in the wrong direction.

C. The Presumption of Regularity

In the Census Case, the dissent chided the Court for failing to extend the presumption of regularity to Secretary Ross’s explanation of his decision to include a citizenship question in the Census.³⁵⁹ This presumption might be justified when applied to routinized functions—to spare the defendant from proving that lot one hundred was the same as lots one through ninety-nine, for example. But when substantive decisions are involved, the stakes are high, and motive is potentially an issue, the presumption of regularity is more difficult to justify. When a plaintiff alleges procedural impropriety or illicit motives the presumption allows a court to “presume that ‘official duties’ have been ‘properly discharged’ until the challenger presents clear evidence to the contrary.”³⁶⁰ Plaintiffs already bear the burden of proving their claims by a preponderance of the evidence. Thus, although the courts do not generally tie the presumption to any established standard of proof, the presumption of regularity must require the plaintiff to do something more than satisfy the normal burden to establish a procedural flaw or improper motive. Under the presumption, a plaintiff might be able to show by a preponderance of the evidence—i.e., that it is more likely than not—that the government acted improperly, but the court still could refuse to consider the evidence.

Several justifications are offered for this thumb on the scale. One is factual. Administrators “are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.”³⁶¹ That, however, is an empirical proposition advanced without empirical evidence. No doubt, many administrators are indeed “men [or women] of conscience and intellectual discipline,” and can judge a controversy fairly.³⁶² But not all. In fact, some scholars suggested that a presumption of irregularity should have applied during the Trump Administration.³⁶³ That proposition, too, requires empirical support.

A second rationale for the presumption of regularity stems from the separation of powers, or comity between branches of government. However, comity does not require a court to disregard a showing made by a preponderance of the evidence that the government engaged in misconduct. Granted, limiting the number of permissible inquiries into administrative misconduct decreases the opportunity for tension between the branches. One could make a policy judgment that this benefit outweighs the cost of denying a claim that meets the normal burden of proof. But there is also a cost to the judicial system when courts deny a claim that, to all appearances, reflects what happened. Nor is it clear why comity demands that government officials enjoy a presumption of regularity but employees of Mercy Hospital, or the Sacred Heart Convent, or the Southern Poverty Law Center do not. While government officials take an oath to protect and defend the Constitution, doctors take an oath to do no harm, religious officials pledge their fealty to God, and attorneys swear to uphold the Constitution and the rule of law.

In large part, the presumption of regularity is a mechanism to spare courts from inquiry into the motivations behind the actions of government officials. As discussed above, avoiding that responsibility by presuming the conclusion is not justified.

V. Conclusion

In this era of alternative facts, the courts should be a bastion of truth. Doctrines that allow demonstrably untrue, perhaps laughable, claims to receive judicial imprimatur even indirectly run counter to this obligation. When it is obvious that the Supreme Court has blessed absurd or nihilistic claims, respect for the institution suffers. We can ill afford to cripple our courts in this manner at a time of dire need for their integrity, thoughtfulness, and commitment to truth.

* Adjunct Professor of Law at Georgetown University Law Center. While at Arnold & Porter, the author did some work on the Travel Ban and Census Cases.