Most people assume that when the Supreme Court decides a case, it’s over. Final. That’s usually how it is, but not always. Sometimes when Court issues an opinion, it also sends the matter back to the lower courts for further consideration in light of the new guidance.

For procedural reasons I’ll explain soon, this is the path the Court took two weeks ago when it upheld Travel Order No. 3 in a bitterly divided 5-to-4 vote. So that means the case of Trump v. Hawaii will be returning to the lower courts which, altogether, have struck down the order, in its various iterations, a total of not one, not two, not three, not four, but five times. 

So what happens on remand now that the Supreme Court has ruled? Is it done at long last?

I. A Plan to Keep the Case Going

In a recent Bloomberg column, prominent Harvard law professor Noah Feldman, relaying ideas from Yale’s Owen Fiss, offers a preview of how Hawaii’s lawyers will keep fighting the case.

Fiss and Feldman believe that Justice Kennedy hinted in his concurring opinion—like Fermat scribbling his elusive theorem in the margins of his notes—that there may still be substantive issues for the lower courts to explore. “On his way out the door, Justice Anthony Kennedy buried a nugget in his concurring opinion that allows the challengers to go back to the district court and demand a trial on whether President Donald Trump’s travel ban was motivated by anti-religious animus,” Feldman observes.

Upon first glance, his optimism may seem reminiscent of that whole “Here’s how Bernie can still win” meme from a while back. After all, it is hard to believe that Kennedy, despite retiring, or any of the justices for that matter, really want this case stalking their docket for the rest of Trump’s presidency. Yet Feldman does seem to be on to something. In a brief concurrence to Chief Justice John Roberts’ majority opinion, Kennedy does indeed ponder

Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs… And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.

So Kennedy does seem to entertain the case continuing—which may be confusing. Didn’t the Supreme Court reject legal arguments against the travel ban? Yes but, as I hinted at earlier, there is a procedural subtlety: in upholding the travel ban, the Supreme Court merely reversed a preliminary injunction granted by a federal court in Hawaii and affirmed by the Ninth Circuit. (A few days later, the Court vacated a parallel injunction from a federal court in Maryland, within the Fourth Circuit.) The Court did not officially decide the merits of the case by awarding judgment to either Hawaii or President Trump. Instead, as is their common practice, the Justices directed the Ninth Circuit to handle all that on remand. So technically, neither side has won a formal, final victory. Of course, everyone expects that the lower courts will be forced to find in the Government’s favor now that the Supreme Court has substantively rejected all of Hawaii’s legal arguments.

II. Hawaii May Seek Intrusive Discovery 

Unless…Unless—Feldman and Fiss hope, Hawaii can somehow demand a trial, which might allow its lawyers to “seek discovery to uncover new evidence of Trump’s thinking, including, potentially, drafts of the executive order or memos about it.” “Who knows,” Feldman wonders, “what they might reveal.”

Hawaii’s lawyers will certainly seek discovery. They have nothing to lose by doing so. And if the fishing expedition Feldman proposes is allowed to happen, it is possible, he thinks, that the documents reeled in will prove unconstitutional intent.

There’s just one problem. Isn’t seeking “drafts of the executive order or memos about it” exactly what Kennedy cautioned against when he warned that “even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive”?  In what universe would compelling the President to divulge his staff’s private, incomplete thoughts about the security practices of foreign governments not “intrude on” his foreign affairs powers? Revealing the intermediate, unfinished assessments that were used to select the countries could cause the White House to face (even greater) embarrassment and contempt in foreign capitals and, worse still, undermine the strategic objectives that motivated the travel ban in the first place.

Of course, the challengers believe that Trump’s “strategic objectives” are so obviously a fig leaf that there’s no harm in subjecting the White House to a strip-search in order to expose the fraud. But this way of thinking is precisely why Kennedy included his admonition.

As Josh Blackman points out at Lawfare, last December Kennedy voted to block a California judge’s demand for thousands of documents concerning the termination of DACA. And, Blackman further observes, this intervention was in the context of a domestic policy, a sphere in which the president is owed far less deference than in his conduct of foreign affairs. One would think that, in light of their DACA intercession and votes to uphold the travel ban, it would be clear that Kennedy and the other conservatives intend for President Trump to be treated as President instead of as Trump.

III. The Waiver Provisions

A possible exception to executive privilege might be documentation on how the administration is implementing the travel ban’s waiver provisions.

As Blackman notes, lower courts may demand the “production of official documents concerning the waiver process.” Indeed, in his dissent Justice Breyer invited discovery on this very question, which was central to his gentle approach to the entire case. Employing his usual savoir faire, Breyer reasoned that if the travel ban were truly premised on national security, and not prejudice, then the Government would not be miserly in granting waivers to people who have passed the required vetting. So he wants the lower courts to look into it. “Given… 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.” Evidently then, Breyer doesn’t think discovery on this matter would be unduly intrusive, perhaps because the administration’s waiver procedures are not entangled with its posture toward other countries. 

IV. Lower Standard of Evidence? 

Feldman and Fiss make another point: that even without fruitful discovery the lower courts could still rule for Hawaii because the “standard of proof of bias that the plaintiffs would have to meet could actually be lower at trial than in their action seeking a preliminary injunction.” That seems like a subtle legal question that will need to be expounded upon by experts when and if Hawaii actually gets that far. At least initially, I think that Feldman is, once again, succumbing to wishful thinking. (Though it is the Ninth and Fourth Circuits we’re talking about.) 

The Supreme Court held that the President possesses the statutory authority to impose the travel ban’s entry restrictions. That is an abstract conclusion of law unrelated to the allegations of religious bias, so there is nothing more to litigate there. 

As for the Establishment Clause claim, which obviously is intensely fact-dependent, the Supreme Court decided that, even with all the evidence of animus, the travel ban could “reasonably be understood to result from a justification independent of unconstitutional grounds.” Given how how clear Roberts was, it’s hard to see how, absent bombshell new evidence, lower courts could rule against the Government without, out of logical necessity, reaching conclusions contrary to the Supreme Court’s. 

But then again, the Ninth Circuit doesn’t lose too much sleep over being reversed by the five conservatives. So I’ll end with two bold predictions about what’s to come. First, within the next six months, district judges will try to force the administration to grant more waivers. Second, the Supreme Court— assuming it has nine justices—will not permit the Plaintiffs to invade the White House’s privacy in a desperate effort to revive this case. 

V. Conclusion – Try, try again?

Ultimately, Trump will win. The Supreme Court will again get involved if it has to. But it’s not over until it’s over, and it’s not over just yet.


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