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Can the Justices decide the Trump immigration case swiftly? A lesson from 1981

June 8, 2017 by Lyle Denniston

 

Lyle Denniston, the National Constitution Center’s Supreme Court correspondent, recalls a 1981 case that sped through the court in 21 days.  This post is based on his own files while covering that case, Dames v. Moore v. Regan, for the Washington Star newspaper and on internal court documents now found in various archives of the Justices’ papers.

Next Monday afternoon, the Supreme Court will have in hand the files it will need to go forward with the process of reviewing President Trump’s controversial limits on immigration, by Mideastern peoples and by refugees.  At that point, the Justices will have about three weeks to work with, if they should make a highly unusual decision to try to make a decision before they recess for the summer.  Could they do it?

Thirty years ago this month, finishing a busy term and with one Justice preparing to retire at term’s end, they did just that.  The most spectacular part of that incident was that the author of the lead opinion wrote the first lengthy draft within two days after a hearing and, then, making only a few changes, finished a 36-page final opinion that was made public six days later.

The author was a Justice who actually had opposed even reviewing the case, and was against the speedy schedule set for it.  Moreover, he wrote the opinion while spending a weekend in what a colleague called the “severe discomfort” of an illness.

Justice William H. Rehnquist, then 57 years old and in his ninth year on the court, cast his first vote on the case -- as did his colleagues -- at a private conference of the Justices on Wednesday morning, June 11, 1981.  The issue then was whether to grant review and, separately, to agree to a government request to review the case on a much-expedited schedule.

A colleague taking notes wrote that Rehnquist “Disagrees on every Q.”  The word “every’ was underlined twice; the “Q” was a reference to the legal and constitutional questions posed for review along with the issue of expedited review.

One other Justice, Potter Stewart, who had announced his retirement, to take effect after the term was over, also opposed review.  He protested, a colleague wrote, that the court was being “stampeded.”  The other seven Justices voted to take on the case.  An order issued that day, June 11, calling for all briefs to be filed by June 23, with a hearing set the day after that.  (Usually, the normal schedule takes at least 105 days, between the day review of a case is granted and a hearing is held.)

The speedy schedule was the plan for the case of Dames & Moore v. Regan (Donald Regan was the Treasury Secretary at the time).  That case had grown out of decisions by President Jimmy Carter, in the final weeks of his presidency, as he sought the release of Americans who had been taken hostage by the Iranian government when it seized the U.S. embassy in Tehran.  Under the main deal with the Iranians, the hostages were released on January 20, 1981 – inauguration day for the new President, Ronald Reagan.

The deal put an end to all existing court cases in U.S. courts by business firms seeking to take control of Iranian assets located in this country to settle commercial debts.  Carter had ordered the freezing of those assets following the hostage-taking.  The business firms were being told to take their cases to an internal tribunal for arbitration.  Dames & Moore, a Los Angeles engineering consulting firm, had a claim against Iran for an unpaid contract debt of $3,436,694.30.

When the hearing on the case was held on June 24, the afternoon newspaper in the nation’s capital, the Washington Star, said in a front-page story that Justice Rehnquist had been “the most critical member of the court” about the deal.  He “sarcastically” told the federal government’s lawyer that the argument in favor of the deal “amounted to a claim that ‘the president can violate the Bill of Rights on his own.’”

The story went on to recount a hypothetical question that Rehnquist asked the government of Iran’s lawyer about the American president’s power to ban anyone in the U.S. for one year from criticizing the Ayatollah and whether, if someone did that, the U.S. would be liable for damages to Iran.

Right after that hearing, the Justices met in a private conference to vote on the case.  The exact tally of that vote is not available in existing archives, but there are surprising indications that the vote in favor of upholding the deal had been unanimous.

Before the afternoon was over, Justice Rehnquist apparently had the assignment, from Chief Justice Warren E. Burger, to write the opinion for the court.  Burger sent around to his colleagues a note: “To ‘get the show on the road’ Bill Rehnquist has agreed to get an opinion in our hands by noon Sunday, next – if not before.”

On Friday, June 26, Justice Byron R. White wrote a note to Rehnquist, commending him for a “very good” draft, which White said he had given “a quick reading.” He had some suggestions for changes.

Also, on the following Monday, the 29th, Justice Lewis F. Powell, Jr., wrote a note to Rehnquist, concluding with “We are all much indebted to you and I hope that your severe discomfort over the weekend was merely a natural reaction to the great pressure under which you have worked.  The bracing air of New England should be restorative.”  (Rehnquist had apparently taken his work with him to a vacation home he and his wife Nan had in Greensboro, Vermont.)

Six days later, on Thursday, July 2 (the final day of the term), Rehnquist announced the final ruling in favor of the hostage deal; except for a few qualifying thoughts by two Justices in short separate opinions, the result was unanimous.

Lost in the mists of history is the answer to the puzzle as to why the Chief Justice decided that it would be Rehnquist, the vigorous opponent of the deal, who would take on the task of writing the opinion that would uphold it, and by doing so leaving little doubt that President Carter had the power to do what he had done.

This was, of course, a really big case, and usually the assignments for writing the opinions in such cases are taken by the Chief Justice or given to one of the more senior Justices.  At the time, Rehnquist was the second most junior Justice.

It might be that Burger decided that, at age 57, Rehnquist was young enough and fast enough to handle the onerous chore of turning out a big opinion quickly.   And it might have been that, knowing how Rehnquist had felt about the case, he might be trusted to write the narrowest opinion possible to dispose of the case quickly.

Whatever Burger had had in mind, the result was the court working at one of the fastest paces ever.  It apparently can be done.

In appealing the Trump immigration case to the Supreme Court, the Justice Department asked the Justices to act quickly – but only on a grant of review, with the final decision put off until the next term, starting in October.   However, in a note on Twitter this week, President Trump himself said he wanted the case decided more quickly.  That, however, was not a formal filing in the court.

The Justices do have the discretion, if they think the case is important enough, to follow the lesson of the Dames & Moore case.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

 

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