(Bloomberg View) -- One thing became clear during Wednesday’s oral argument at the U.S. Supreme Court about President Donald Trump’s travel ban: Justice Elena Kagan has a strategy to persuade swing Justice Anthony Kennedy to vote against the ban. Her approach will be to depict the case as a watershed moment in the court’s jurisprudence about bias — thus making it extraordinarily difficult for Kennedy to find himself on the wrong side of history.
Legally speaking, the travel ban case has lots of moving parts: Do Muslims in the U.S. have a legal avenue to challenge a ban that excludes only non-Americans outside the country? How is power divided between the president and Congress with respect to immigration? Did the president offer sufficient reasons to justify the ban, which currently applies to five majority Muslim countries?
If the case is ultimately decided on the basis of any of these thorny questions, the ban is overwhelmingly likely to survive the court’s review. It’s not that the arguments for the order’s legality are so strong. Rather, focusing on any of these questions would allow the court’s majority to deflect attention from what has bothered all the lower courts that have struck down the ban: Its manifestation of pure anti-Muslim sentiment.
The only way the ban will be struck down is if five justices — including Kennedy — focus on Trump’s openly Islamophobic statements during the campaign. If that happens, they will in effect be treating version 3.0 of the ban as a product of the same motive as the first two versions. And that motive can potentially be characterized as unconstitutional.
Kagan knows this, as her rather brilliant comments during the oral argument made clear. It’s rare that a single justice can really take conceptual control of an oral argument, but Kagan came close.
She introduced a hypothetical about an anti-Semitic president with a travel ban of his own, a scenario that drew on an argument the government had introduced its briefs:
So let's say in some future time a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in the course of that, asks his staff or his cabinet members to issue … recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's. And what emerges — and, again, in the context of this virulent anti-Semitism — what emerges is a proclamation that says no one shall enter from Israel.
The genius of pressing the hypothetical was partly that it was designed to make Solicitor General Noel Francisco say that even on those facts, he actually believed the travel ban could survive. That in turn would make Francisco’s argument look implausible — to Kennedy, if to no one else.
The solicitor general took the bait. “If his cabinet were to actually come to him and say, ‘Mr. President, there is honestly a national security risk here and you have to act,’” Francisco answered, “I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
Legally, Francisco’s position wasn’t necessarily damning. All he was saying was that if the executive branch acted with good reason, it wouldn’t really matter what the president’s personal motives were.
Morally, however, not to mention politically and rhetorically, Francisco’s argument was weak in the extreme. That’s because, as everyone in the courtroom basically knew, there is no convincing evidence of an immediate or drastic national security threat connected to people coming from the countries currently included in the travel ban.
In other words, Francisco’s answer highlighted that the case for keeping the ban in place depends on the idea that there really is a pressing national security threat. If there isn’t, then Trump is just like the president in the hypothetical: a demagogue enacting an executive order based on prejudice.
Francisco seems to have picked up on this, and after giving the answer that Kagan had expected, he tried vaguely to distinguish the circumstances of the hypothetical by saying that Israel is a close ally of the U.S. in the war on terrorism, and so the hypothetical didn’t quite fit.
Kagan brilliantly turned the effort against Francisco with humor: “General, this is an out-of-the-box kind of president in my hypothetical,” she said, to courtroom laughter. With this quip, Kagan reminded everybody in the room that Trump really is an out-of-the-box president with respect to his open expression of anti-Muslim sentiment. Her point had been made.
The final twist to Kagan’s move was to shift the topic of bias from Islamophobia to anti-Semitism, which makes the bias seem worse by connecting it implicitly to the Holocaust. The index to the transcript of the oral argument shows that the words anti-Semite and anti-Semitism were used four times in the oral argument, compared only two for anti-Muslim.
The goal of the Kagan strategy is to remind Kennedy that, if you vote to uphold the ban, she has the will to write a withering dissent that would align him with a head-in-the-sand denial of the existence of anti-Muslim animus.
Kennedy has been a path-breaker in jurisprudence that rejects government animus as unconstitutional, both with respect to religion and sexual orientation. It would be difficult for him to preserve this legacy if Kagan in a dissent were to identify him with an opinion giving short shrift to the reality of such bias.
You can never be entirely sure what Kennedy will do. But if I had to bet, the Kagan strategy is more likely to work than not. If the bias issue could be avoided, Kennedy might uphold the ban. But if he can’t, or won’t be allowed to get away with it, he could well provide the decisive vote to strike it down.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
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