Our entire democratic system is based on an assumption of trust and good faith in government decision making. If we can’t take government actors at their word, at least most of the time, everything breaks down.
In upholding the Trump travel ban, the Supreme Court gave the benefit of the doubt to arguments from Department of Justice lawyers that turned out to be “thoroughly unfounded.” The Court accepted government assurances that the ban would be temporary; it would be regularly reviewed; and waivers would be considered in appropriate cases. All untrue in retrospect.
The parallels to transgender military policy are striking. Earlier this month the Ninth Circuit gave every benefit of the doubt to government assertions about the policy: its origins, its justifications, its effect on transgender persons in service, and even whether it was a ban at all. The Ninth Circuit then directed lower courts to give more weight to claims of “executive privilege” to withhold information that could reveal the ban was motivated by politics, not concerns for military readiness. (See additional Palm Center commentary on the Ninth Circuit decision here.)
Today the Supreme Court issued a decision (Department of Commerce v. New York) about government claims of reasonableness in policy making, and the clear message was “fool me once, shame on you; fool me twice, shame on me.” The issue was whether to accept at face value why the Trump administration sought to add a citizenship question to the census. Government lawyers said the Trump administration was trying to protect voters; the challengers contended that those reasons were a pretext to hide the true motivation—political advantage gained by depressing the census count.
Unlike in the travel ban case, the Court today was openly skeptical of the government’s claims, and surprisingly so:
“Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.”
“Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. “
“Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
“What was provided here was more of a distraction.”
The Supreme Court returned the case for further review of the real reasons behind government decision making. There is apparently a limit to “benefit of the doubt” when the evidence shows the government made a decision first—for political reasons—and then worked to later paper-over that decision with more reasonable-sounding justifications.
This is precisely what plaintiffs challenging the transgender ban have argued: that the president ordered a ban on transgender military service, and then the Department of Defense spent the next nine months assembling reasons to back it up. The decision in Department of Commerce v. New York should give lower courts a push to exercise healthy skepticism when the reasons for a decision were all crafted after the decision was made.
This isn’t the old-school world in which courts can simply defer to military decisions, safe in the comfortable assumption that they must have been made for good military reasons, rooted in experience and expertise. It’s a new world, and healthy skepticism has an essential role.